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Federal Court Strikes Part Of NLRB'S Notice Of Posting Rule

March 9, 2012


On March 2, 2012, the United States District Court for the District of Columbia held that the National Labor Relations Board (“NLRB”) partially exceeded its statutory rulemaking authority when it issued a final rule in August 2011 requiring employers covered by the National Labor Relations Act to post a Notice informing employees of their rights under the NLRA. The federal court upheld the portion of the rule that the posting of the notice; however, it invalidated most of the rule’s enforcement mechanisms.

The NLRB’s controversial final rule prompted the National Association of Manufactures (“NAM”) and others to file a lawsuit seeking to enjoin the Board from requiring employers to post the notice by April 30, 2012. NAM asserted that the NLRB did not have the statutory authority to issue the rule and/or the rule violated Plaintiff NAM’s First Amendment rights.

As noted above, the court held that the notice posting provision in the rule does not exceed the NLRB’s statutory rulemaking authority, but invalidated two key enforcement provisions in the rule because they do exceed the Board’s rulemaking authority. Specifically, the court struck down the provisions of the rule: (a) that would have made it an unfair labor practice for an employer to fail to post the required notice and (b) that would have eliminated the statute of limitations for employees to file a complaint under the NLRA if the employer did not post the required notice.

What this means for employers
It is important to note that even though the court invalidated the blanket unfair labor practice portion of the rule, the court did hold that the NLRB may make an individualized determination that failure to post the notice was unlawful in a specific case (e.g. a refusal to post the notice in the face of a union organizing drive).

NAM immediately announced plans to appeal the decision. It also plans to request that the rule not go into effect until completion of the appeal process. However, because neither the courts nor the NLRB have delayed the rule’s April 30, 20112 posting deadline, employers should plan to post the required notice by that date. To obtain copies of the poster, see our September 15, 2011 Bullard Alert or the NLRB website.

Bullard Law will continue to apprise you of ongoing developments related to this rule and other labor, employment and benefits issues.

- David M. Thompson