NLRB Employee Rights Poster: Federal Court Upholds Rule and April 30 Deadline

Stop us if you’ve heard this one before… The National Labor Relations Board’s poster rule, requiring both union and non-union employers to post notice of employee rights under the National Labor Relations Act, is back in the news:

“On March 2, 2012, a federal district court in Washington, D.C. upheld the authority of the National Labor Relations Board (‘NLRB’) to require most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act.” (NLRB Posting Requirement Upheld By Court by Thompson Coburn LLP)

For your reference, a roundup of legal advisories on the decision and what it means for employers:

Court Holds that National Labor Relations Board Can Require Employers to Post Notice of Employee Rights (Dechert LLP)

“Judge Amy Berman Jackson … held that the National Labor Relations Board validly issued a rule requiring most employers, including employers without any union employees, to post a notice of employees’ rights under the National Labor Relations Act.” Read the full update»

Federal Court Partially Invalidates NLRB Notice Posting Rule, Rejects First Judicial Attempt to Contest Board Recess Appointments (Littler)

“The lawsuit at issue was brought by, among other entities, the National Association of Manufacturers and the National Right to Work Legal Defense and Education Foundation. It sought to enjoin the enforcement of the Board’s new rule mandating that as of April 30, 2012, private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a ‘conspicuous place’ readily seen by employees and penalizing employers for non-compliance.” Read the full update»

District Court Refuses to Block NLRB Notice Posting Rule During Appeal; April 30 Date Still Applies (Franczek Radelet P.C.)

“The NAM and NFIB had argued that employers would be irreparably harmed without an injunction because the notice posting rule would require them to choose between posting the notice, and thereby surrendering their First Amendment rights, and electing not to post it and facing Board-imposed penalties instead.” Read the full update»

Court Upholds NLRB Notice Rule but Strikes Down Sanctions (Fenwick & West LLP)

“Judge Amy Berman Jackson held that the Board has a right to require employers to post the notice, but that it does not have the authority to impose the exacting penalties described in the rule.” Read the full update»

Court Decision on NLRB Posting Requirement Isn’t Much of a “Win” for Employers (Constangy, Brooks & Smith, LLP)

“Judge Jackson … found that the Board had exceeded its authority (1) by creating a new unfair labor practice based on failure to post the notice, and (2) by pre-determining by rule that a failure to post the notice would toll the six-month limitations period for filing unfair labor practice charges. Unfortunately, these latter parts of Judge Jackson’s ruling may provide little comfort to employers because, as the judge indicated in her decision, the Board may pursue these results on a case-by-case basis – just not by way of general rulemaking.” Read the full update»

Employer NLRB Posting Requirement Update: Court’s Decision Leaves April 30, 2012, Posting Deadline in Effect (Lowenstein Sandler PC)

“On Monday, March 5, 2012, management-side trade groups opposing the court’s ruling filed papers with the U.S. Court of Appeals, District of Columbia Circuit seeking to overturn the decision. In the meantime, on Wednesday, March 7, 2012, the lower court denied the request posed by those trade groups to stay its ruling and the obligation to post the notice effective April 30 while the appellate court considers the appeal.” Read the full update»

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)

“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.” Read the full update»

NLRB Posting Rule Upheld (Akerman Senterfitt)

“Regarding the argument that the Board had violated the APA, Judge Jackson found that the Board had not exceeded its authority under the NLRA and that its Rule was reasonable and neither arbitrary nor capricious. In addition, the Rule did not violate the First Amendment, because the required notice poster is clearly a communication from the Board. Therefore, it is compelled ‘government speech,’ which is not subject to free speech scrutiny.” Read the full update»

First Court Decision on NLRB Notice Posting Produces a Split Decision (Miller Canfield)

“Likewise, the court found that the provision extending or tolling the six-month statute of limitations also violated the explicit language of the NLRA. The court noted that there are circumstances when the six-month statute of limitations is tolled, but under those circumstances the burden of establishing the rationale to toll the statute of limitations was on the employee. In the rule, the NLRB essentially flipped the burden to the employer. The court found that this was not permitted by the language of the NLRA.” Read the full update»

District Court Upholds NLRB Authority to Issue Posting Requirement (Ropes & Gray LLP)

“This decision does not invalidate or further delay the posting requirement. At present, employers will be required to post the notice as of April 30, 2012… Although the opinion makes clear that the failure to post the notice is not a violation of the Act in and of itself, a failure to post may still be considered evidence supporting an unfair labor practice charge.” Read the full update»

NLRB Employee-Rights Posting Rule to Take Effect April 30 (Law & Industry Daily)

“The NLRB rule provides exemptions for the United States or any wholly-owned government corporation, the Federal Reserve System, U.S. Postal Service and workers subject to the Railway Labor Act. Also exempt from the rule are agricultural and airline employers, stock brokerage firms, professional sports teams and commercial enterprises with a “substantial effect” on national defense or receive ‘large amounts’ of federal funds.” Read the full update»

Two out of Three is Bad: Judge Says Poster Goes Up (Warner Norcross & Judd)

“So, all in all, this is a win for the Board and the unions. In fact, according to The Wall Street Journal, the General Counsel for the AFL-CIO said ‘While the judge invalidated two sensible enforcement mechanisms in the rule, her decision affirms that the Board has ample authority to enforce the notice-posting requirement on a case-by-case basis, …’…On the other hand, again according to The Wall Street Journal, the president of the National Association of Manufacturers said: ‘We believe today’s decision is fundamentally flawed, …’” Read the full update here»

Court Issues Decision on the NLRB’s Posting Requirement (Miller & Martin PLLC)

“What does this mean to employers? Failing to post the required notice will not automatically be deemed an unfair labor practice, but it can have adverse consequences. First, it may be used as evidence of an employer’s anti-union animus in cases in which this is an element of the Board’s General Counsel’s burden of proof.” Read the full update»

Court Upholds Board’s Notice Posting Rule; Strikes Enforcement Provisions (Ford & Harrison LLP)

“Under the court’s decision, the Board may still find that the failure to post the notice is an unfair labor practice, depending on the particular facts of a specific case. Similarly, the court’s decision does not prevent the Board from considering an employer’s failure to post the notice in determining whether the statute of limitations should be tolled in a particular unfair labor practice case.” Read the full update»

District Court Invalidates Portion of NLRB Posting Rule (Franczek Radelet P.C.)

“For now, employers who are covered by the NLRA must plan to post the notice on April 30. Another challenge to the rule is pending in a federal district court in South Carolina. We will continue to monitor that case and will keep you updated as to further developments.” Read the full update»

Court Upholds NLRB’s Right to Require Employers to Post Notice Regarding Unions (Wilson Sonsini Goodrich & Rosati)

“While the holding did invalidate parts of the rule, the requirement that employers post the notice still stands… Although additional suits have been filed challenging the rule and an appeal of the decision is likely, employers will be well served by preparing to comply with the rule by its current effective date of April 30, 2012.” Read the full update»

Waiting for the Dust To Settle on New NLRB Posting Requirement ( Pullman & Comley, LLC)

“From my perspective, the amount of focus on posting requirement is a bit overblown. In this age of technology, employees don’t need to rely on posters in the back of a lunch room for information on their rights anymore. (And really, how many times have you REALLY seen employees even look at these.)  They can use their smart phones to check out the NLRB website from anywhere.” Read the full update»

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Related Reading

NLRB Poster Rule Delayed. Again. (New date: April 30, 2012)

NLRB Poster Rule Delayed: Legal Update FYI

NLRB Poster Rule: Taken Down Before It Goes Up?

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