Employers may soon be required to display an oversized poster informing employees of their right to unionize. The National Labor Relations Board (“NLRB”), the agency responsible for the poster mandate, twice delayed the posting deadline due to legal challenges. Two of those challenges – one by the National Association of Manufacturers and another by the National Right to Work Legal Defense and Education Foundation – resulted in a consolidated ruling by the United States District Court for the District of Columbia. The court’s decision upheld the NLRB’s authority to require the poster and denied a challenge on free-speech grounds, but it was not a total victory for the agency.
The most important part of the court’s decision for employers is that the poster requirement still stands. Unless there are further delays or another legal challenge prevails, employers must display the poster by April 30, 2012. But the court found the NLRB overreached when it issued a rule stating that failure to display the poster is automatically an “unfair labor practice” in violation of the National Labor Relations Act. This does not mean employers are free to ignore the poster requirement, however. On a case-by-case basis, the NLRB may find that the failure to post the notice is an unfair labor practice. The court also rejected a portion of the rule that would automatically stay the six-month statute of limitations if an employer did not display the poster. Once again, the court held that the NLRB could make this decision on a case-by-case basis. These are major victories on the penalty side of the issue.
Nothing in the court’s ruling changes what employers need to do. You must be prepared to put up the poster by April 30, 2012. You can download a copy of the poster here. Remember to display the poster in any language spoken by at least 20 percent of your employees. There remains the possibility that another legal challenge will succeed, that this one will be appealed, or that the NLRB will once again delay the compliance deadline. We’ll keep you posted.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
