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UPDATE: NLRB Posting Rule on Hold

Posted on Mon, Apr 23, 2012 @ 09:13 AM

describe the imageRobert J. Hollingsworth

Court Blocks NLRB Employee Rights Notice Posting Requirement

On April 17, 2012, the Court of Appeals for the District of Columbia temporarily blocked implementation of the NLRB's new rule requiring private sector employers to post the NLRB's Employee Rights notice.  Additionally, on April 13, 2012, a federal district court in South Carolina ruled that the NLRB lacked authority to promulgate the notice rule.  In light of these rulings, the NLRB announced that it "will not implement the rule pending resolution of the issues before the court."

The fate of the posting rule is now unclear.  While federal courts have the authority to decide whether the posting rule is valid, even if the rule is ultimately upheld by the courts, the fate of the rule may still be decided by the presidential election in November.  If the election results in a Republican majority appointed to the NLRB, the Board could scrap the notice rule.

Stay tuned.  We will report new developments and details as they become available.

Tags: Labor & Employment, National Labor Relations Board (NLRB), Unfair Labor Practices (ULP), Employee Rights Notice

Court Upholds NLRB Employee Rights Notice

Posted on Fri, Mar 16, 2012 @ 10:05 AM

Robert Hollingsworth, Labor & EmploymentBy Robert Hollingsworth

Employee Rights Notice Must Be Posted By April 30, 2012

On March 2, 2012, the U.S. District Court for the District of Columbia upheld the NLRB’s right to require employers to post the NLRB’s Employee Rights Notice.  This Notice informs employees in the private sector of their rights under the National Labor Relations Act to engage in “protected concerted activity.”  In a 46-page opinion, the District Court rejected all of the challenges made by the National Association of Manufacturers to the NLRB’s authority to require employers to post the Notice.

This Notice must be posted by April 30, 2012.  It is available in English and 26 other languages at the following webpage:  www.nlrb.gov/poster.

There was some consolation for employers in the Court’s decision. 

The Court struck down two of the penalties prescribed by the Board for an employer’s failure to post the Notice.  The NLRB’s Final Rule on the Notice provided that the failure to post the Notice would be an independent unfair labor practice (ULP) and would suspend the six-month statute of limitations for other ULP’s (i.e., the charging party would have more than six months to file a ULP charge).  The Court ruled that the NLRB lacked authority to expand the statutory list of unfair labor practices, or to change the statute of limitations.  But the Court also indicated that an employer’s failure to post the Notice might be properly used by the NLRB in other ULP cases against the noncompliant employer as evidence of the employer’s unlawful motive.

National Association of Manufacturers v. NLRB, Case No. 11-1629 (D.C. March 2, 2012)

Tags: Labor & Employment, National Labor Relations Board (NLRB), Unfair Labor Practices (ULP), Employee Rights Notice, National Association of Manufacturers