Up with NLRB employee-rights posters, or suffer ze consequences

Back on August 26, in this post, I gave the heads up that the National Labor Relations Board would require most private-sector employers to post this notice (a super-sized version of the one on the right), in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

And then some employer groups went to court because they don’t like NLRB posters. In response, the NLRB slowed its roll not once, but twice, delaying the postponing the posting deadline until April 30, 2012.

Now a federal court has weighed in on the posting requirement. What did it say? And will your business have to post something by April 30, 2012. Find out after the jump…

Fortunately, for you and me, Brendan Bolt at Labor Relations Today, my “go-to blog” for labor-law news, has already digested the Court’s 46-page opinion — I started to glaze over at about page 12 — into four bullets. The court held that the NLRB:

• properly issued a rule requiring private-sector employers to post notices informing employees of their rights under the Act;

• cannot issue a rule automatically deeming an employer’s failure to post the notice an unfair labor practice in violation of Section 8(a)(1) of the Act;

• cannot equitably toll the statute of limitations in unfair labor practice actions against employers who have failed to post; and

• can consider an employer’s “knowing and willful” failure to post the notice as evidence of unlawful motive.

Stefan Marculewicz at Labor Relations Counsel offers this catch-22 for employers:

As a practical matter, without the rule’s enforcement teeth, it would appear that the NLRB cannot find an independent unfair labor practice if an employer fails to post the notice. That said, it would also appear that an employer’s failure to post the notice could be considered as part of the facts and circumstances the Board relies upon to determine whether certain unfair labor practices have occurred.

It’s the “knowing and willful” language of the opinion that strikes me. Quick, borrow this! No? Didn’t work. Oh well, that’s the downside of reading this blog. Since, by now, you know about the posting requirement, your business may attract some NLRB attention if, by April 30, 2012, you engaged in a “knowing and willful failure to post”. That is, unless a South Carolina federal court, where another attempt to block the posting requirement is pending, saves the day for employers.

Ouch! Which one of you stuck that pin in my voodoo doll? Hey, where you gonna stick that thing, now? No. Don’t stick it there, nooooooooooo……..