NLRB Posting Rule Upheld

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On March 2, 2012, Judge Amy Berman Jackson of the United States District Court for the District of Columbia held that the National Labor Relations Board ("Board") lawfully promulgated Subpart A of its Rule, “Notification of Employee Rights under the National Labor Relations Act" which requires employers to post a notice of employee rights. However, the Board exceeded its authority under the NLRA by promulgating the two provisions under Subpart B of the Rule that permit the Board to deem failure to post an unfair labor practice and to toll the statute of limitations for claims against employers who fail to post the notice.

On December 27, 2011, we reported that in National Association of Manufacturers, et al. v. National Labor Relations Board, et al., Civil Action No. 11-1629 (ABJ) (D.D.C.), the court was considering plaintiffs' legal challenges to the Rule under the Administrative Procedures Act ("APA") and the First Amendment to the United States Constitution. Regarding the argument that the Board had violated the APA, Judge Jackson found that the Board had not exceeded its authority under the NLRA and that its Rule was reasonable and neither arbitrary nor capricious. In addition, the Rule did not violate the First Amendment, because the required notice poster is clearly a communication from the Board. Therefore, it is compelled "government speech," which is not subject to free speech scrutiny.

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