April 16, 2012
FOR IMMEDIATE RELEASE
District Court Overrules NLRB Poster Requirement
The National Labor Relations Board created a rule that requires employers to post a notice informing employees of their right to form, join, or organize a labor union. The penalties for not complying with the rule are severe. The effective date of this rule – meaning the date when posters must be hung – is April 30, 2012. This requirement has been widely criticized by employers and challenged in various courts.
The District Court in the District of Columbia was the first court to rule on the NLRB’s poster requirement. That court said that while the NLRB had the authority to create the rule, it did not have the authority to carry out the enforcement aspects of the rule. So District of Columbia employers should still post the notice but there are no penalties if they do not post the notice. The South Carolina District Court was the second court to rule on the NLRB’s poster requirement. The South Carolina court held that the NLRB did not even have the authority to create the rule in the first place. So South Carolina employers are not required to post the notice. No other courts have ruled on this, yet.
What are employers in Ohio supposed to do?
Opinions are mixed on how employers outside of the District of Columbia and South Carolina should act. Some experts believe that the South Carolina holding can be utilized as a defense for employers who do not post the notice on April 30, 2012. More conservative experts believe that employers should comply with the posting requirement until a court in their specific state rules otherwise.
There are many reasons why non-union employers do not want to hang the poster. Because of these, I am instructing my Ohio clients that based on the South Carolina case it appears that they do not need to hang the poster. I expect more guidance from either the NLRB or additional court holdings in the coming days and will update you as developments occur.
Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.LEGAL (5342).