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As we recently informed you, a federal court in Washington, D.C. has invalidated parts of the National Labor Relations Board's rule requiring employers to post notices to employees informing them of their rights under the National Labor Relations Act, including the right to unionize. The court recently stated, however, that it would not prevent the remaining parts of the rule from going into effect as scheduled on April 30, 2012.
The court invalidated the parts of the rule that provide penalties for failing to post the notice of employee rights, but it also ruled that the Board may lawfully require employers to post the notice. Accordingly, the employer groups who filed the lawsuit have appealed the court's refusal to invalidate the rule in its entirety. Those groups then asked the court to enjoin the remaining parts of the posting rule while their appeal goes forward. On March 7, 2012, the court declined to put the remaining parts of the rule on hold. The court stated its previous ruling had already struck down the part of the rule that would have made a failure to post an unfair labor practice, which means employers are not facing any irreparable harm that would require an injunction.
Therefore, unless the appeals court overrules the lower court's decision or another court enjoins the remaining part of the rule before then, the NLRB's notice posting requirement will take effect as scheduled on April 30, 2012 (albeit without any penalty provisions). As the court's earlier ruling invalidated its penalty provisions, there are no direct penalties for failing to post the notice. Conceivably, however, the NLRB could use an employer's failure to post the required notice as evidence of anti-union animus in other unfair labor practice proceedings, so there could still be adverse consequences for failing to post the notice. If you have questions about the proposed posting rule or how this development affects your business, contact any of Faegre Baker Daniels' labor lawyers.