Employer associations recently lost their challenge to the National Labor Relations Board’s (“NLRB”) controversial order requiring most employers to post a notice that informs employees of their right to, among other things, organize a union. On March 2, a federal district court in Washington D.C. ruled that the NLRB has the authority to require employers to post the notice. See Nat’l Assn of Manufacturers v. NLRB, 11-1629 (D.C. Cir. March 2, 2012). However, the court ruled that the NLRB does not have the authority to automatically deem an employer's failure to post the notice an unfair labor practice. Id. at 31. Rather, an employer’s failure to post the notice may be an unfair labor practice if the NLRB finds, in an individual case brought before it, that based on the “facts and circumstances... the failure to post interfered with the employee’s exercise of his or her rights.” Id.
What does this mean for employers? Employers are required to post the notice on April 30 in a location where other workplace notices are posted, including on-line intranets. Downloadable versions of the poster in English and Spanish can be found at www.nlrb.gov/poster. Employers who choose not to post the notice are at risk for an unfair labor practice charge if an employee can show that the employer’s failure to post the notice interfered with the employee’s right to, for example, organize a union. It remains unknown at this point as to what an employee has to show in order to establish that the lack of notice interfered with the employee’s right to organize a union.