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Court Invalidates Portions of Recent NLRB Posting Rule

March 7, 2012

On March 2, 2012, United States District Court Judge Amy Berman Jackson invalidated portions of the National Labor Relations Board’s recent “Notification of Employee Rights” rule, which, as previously discussed in our posts, requires private employers to post a notice to employees explaining their rights under the National Labor Relations Act (the “NLRA”) by April 30, 2012.

In the recent ruling http://www.btlaborrelations.com/files/Uploads/Documents/Misc%20Blog%20Attachments/NAM%20v%20%20NLRB-Opinion-March%202012.pdf, the court upheld the Board’s authority to require that the notice be posted. Judge Jackson held that the dissemination of information to employees about their rights under the NLRA “is well within [the Board’s] bailiwick.” Further, Judge Jackson noted “the Board is not attempting to regulate entities or individuals other than those that Congress expressly authorized it to regulate[.]”

However, the court invalidated two portions of the rule which impose strict penalties. Specifically, Judge Jackson held the Board exceeded their authority by implementing the provision that: (1) deems a failure to post to be an unfair labor practice; and (2) tolls the six-month statute of limitations for filing unfair labor practice actions against employers who have failed to post.

While Judge Jackson ruled that “the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice,” Judge Jackson also noted that nothing prohibits the Board from finding on a case-by-case basis that a failure to post constitutes an unfair labor practice.

Even though two portions of the “Notification of Employee Rights” rule have been invalidated, this case will likely be appealed, and until the appeal is decided, the posting provision remains in effect. In addition, the Board still has the authority to determine on a case-by-case basis if a failure to post the notice is an unfair labor practice. For now, employers should be finalizing preparations to ensure the “Notification of Employee Rights” is posted, physically and electronically, by April 30th.