Federal Court Gives Green Light To NLRB's Notice Posting Requirement But Strikes Several Enforcement Provisions from the Board's Final Rule

McNees Wallace & Nurick LLC

As readers of this blog may recall, on August 30, 2011, the National Labor Relations Board (Board) issued its Final Rule, “Notification of Employee Rights under the National Labor Relations Act.” The Final Rule required employers subject to the Act (virtually all private sector employers) to post a rather large conspicuous “Notice of Employee Rights” to inform employees that they have the right to join unions, organize, engage in collective bargaining, strike, picket, etc.

The National Association of Manufacturers (NAM) challenged the Board’s authority to require such posting and filed a lawsuit in federal district court in Washington, D.C. On March 2, 2012, Judge Amy Berman Jackson (appointed to the bench by President Obama in 2011), issued a “split decision” in the matter, upholding the Board’s right to require the notice posting, but finding unlawful and striking those provisions in the Rule which would have (1) automatically deemed the failure to post the notice to be an unfair labor practice (ULP), and (2) tolled the six-month statute of limitations for filing a ULP Charge against an employer who had failed to post the notice.

In finding that the Board had authority to require the notice posting, Judge Jackson found no indication that in enacting the Act, Congress clearly intended to preclude the Board from promulgating such a rule. She went on to find that the Board’s promulgation of the Rule was neither arbitrary nor capricious, and given the lack of Congressional prohibition, the Board had sufficient legal authority to require the notice posting.

Please see full article below for further information.

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