Federal Court Partially Invalidates NLRB Notice Posting Rule, Rejects First Judicial Attempt to Contest Board Recess Appointments

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The U.S. District Court for the District of Columbia issued a ruling on March 2, 2012 that strikes down part of the National Labor Relations Board’s notice posting rule, but declines to address whether the three recess appointments to the Board are valid.

The lawsuit at issue was brought by, among other entities, the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW). It sought to enjoin the enforcement of the Board’s new rule mandating that as of April 30, 2012, private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a “conspicuous place” readily seen by employees and penalizing employers for non-compliance. In the event an employer is found to have violated the posting rule, the Board would be permitted, among other remedies, to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would deem a failure to post the required notice a ULP in its own right.

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