Joseph A. Kroeger
Kathryn Hacket King
John F. Lomax, Jr.
Court Holds That NLRB Posting Requirement is Lawful, but Remedies for Violation of Requirement are Invalid
On March 2, 2012, the District Court for the District of Columbia issued its opinion on a closely watched lawsuit brought by the National Association of Manufacturers and other organizations against the National Labor Relations Board (NLRB). This lawsuit alleges that the NLRB’s recent promulgation of a rule requiring employers to post a “Notification of Employee Rights Under the National Labor Relations Act” (the Notice) exceeded the NLRB’s authority under the National Labor Relations Act (NLRA), in violation of the Administrative Procedure Act and violated plaintiffs’ First Amendment right to refrain from speaking.
Judge Amy Berman Jackson’s opinion holds that: (1) the NLRB did not exceed its authority in promulgating the requirement that employers post the Notice; but (2) the remedy provisions – which provide that a failure to post the Notice will be: (a) deemed an unfair labor practice; and (b) toll the statute of limitations in unfair labor practices against employers – violate the NLRA and are invalid as a matter of law.
The impact of this ruling remains to be seen and we will be closely monitoring any developments. It is quite possible that one or both parties will appeal this ruling to the United States Court of Appeals, District of Columbia Circuit. At present, however, the posting requirement becomes effective on April 30, 2012, and there is nothing in the court’s ruling that changes the posting requirement from going into effect on that date. This means that employers should make an informed decision whether or not to comply with the posting requirement by that date.
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