Federal Court Upholds the NLRB’s Notice-Posting Rule, But Limits The Rule’s Enforcement Provisions

A federal court in Washington, D.C. recently rejected a challenge to the new employee-rights notice posting requirement implemented by the National Labor Relations Board (NLRB).  The notice posting rule requires employers to post a notice in the workplace concerning employee rights under the National Labor Relations Act (NLRA).  The rule is scheduled to go into effect on April 30, 2012.

In National Association of Manufacturers et al. v. N.L.R.B., the plaintiffs challenged whether the NLRB had authority to implement the notice posting rule under the Administrative Procedures Act and whether the rule violated the First Amendment.  The court rejected the plaintiffs’ challenges to the validity of the rule.

At the same time, the court invalidated several provisions of the NLRB’s notice-posting rule relating to enforcement.  First, the court held that, while the NLRB may consider an employer’s failure to post the notice as part of an unfair labor practice claim, that failure alone cannot be deemed a per se unfair labor practice.  Second, the court held that the NLRB did not have authority to equitably toll the statute of limitations for unfair labor practice charges solely because an employer failed to post the notice.  But the court did leave open the possibility that tolling may be appropriate on a case-by-case basis.

The National Association of Manufacturers has already publicly stated that it intends to appeal the court’s decision, and that it intends to seek an injunction prohibiting the implementation of the posting rule.  Further, there is a similar challenge to the NLRB’s rule filed by the United States Chamber of Commerce and the South Carolina Chamber of Commerce that is pending in United States District Court in Charleston, South Carolina.  The court in South Carolina has not yet issued a ruling.

Takeaways:  The NLRB’s notice posting rule remains scheduled to go into effect on April 30, 2012.  While the court in National Association of Manufacturers et al. v. N.L.R.B. limited the enforcement provisions of the rule, an employer’s failure to post the notice may still be considered as part of an unfair labor practice charge.  Accordingly, employers subject to the NLRA should still plan, for now, on posting the employee-rights notice by April 30, 2012.  The notice is available here on the NLRB’s website.  Minnesota Employer.com will post additional updates as they become available.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on March 8, 2012, in Unions and Labor Law and tagged . Bookmark the permalink. Leave a comment.

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