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National Labor Relations Board Notice Posting Rule: Upheld, but with reduced penalties

The National Labor Relations Board’s (NLRB) controversial notice rule has faced multiple legal challenges since it was published in December 2010. The rule, which requires most private employers to post a notice that informs employees of their rights under federal labor law, has been delayed twice and challenged by two lawsuits.

On March 2, 2012, the first of these lawsuits was decided, and the U.S. District Court for the District of Columbia upheld the rule, but struck down certain penalties for noncompliance.  In upholding the rule, the court rejected the argument raised by certain business associations that the NLRB lacked authority to issue the rule.

The court reasoned that Congress had authorized the NLRB to issue rules that further the purposes of the National Labor Relations Act (NLRA) and found that the NLRB had not exceeded this authority in issuing the rule. Employers should note that the court’s blessing of the NLRB’s rulemaking authority could encourage the NLRB to issue additional rules in the future.   The court did, however, strike down certain penalties for employers who fail to post the notice. When the NLRB first issued the rule, it indicated that employers would automatically violate the NLRA if they failed to post the notice and also indicated that it could grant employees and unions additional time to file unfair labor practice charges when the notice was not posted.

The court barred the NLRB from enforcing both of these penalties, but indicated that the NLRB could determine, on a case-by-case basis, that failing to post the notice constitutes an unfair labor practice. The court also declined to strike down the portion of the rule providing that failing to post the notice can constitute evidence of anti-union animus in cases involving other alleged violations.   As of now, the rule should become effective as scheduled on April 30, 2012, albeit with more limited penalties.

Employers should continue to follow the status of the rule, however, because the plaintiff-business associations have indicated that they will appeal the court’s decision, and because other business associations have challenged the rule in a separate lawsuit. In the interim, all private employers who fall within the NLRB’s jurisdiction should obtain a copy of the notice from the NLRB’s website  or from any NLRB regional office, and prepare to post the notice on April 30, 2012.

If you have any questions about this rule or your rights under federal labor law, please contact William J. Kishman or any other member of Bingham Greenebaum Doll LLP’s Labor and Employment Practice Group.

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