Court Invalidates Sections of NLRB’s Rule on Employee Rights Poster

By James M. Walters

On Friday (March 2), Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia invalidated key provisions of the National Labor Relations Board‘s “Notification of Employee Rights” rule, under which all covered employers would have been required after April 30 of this year to post an 11″ x 17″ poster, or else to face possible legal consequences.

While she left the actual posting requirement intact, she ruled that the proposed penalties attached to the Board’s rule were unlawful under the National Labor Relations Act (NLRA).

Specifically, Judge Jackson held that:

The NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But [the Court] also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.”

While the Court left open the possibility that “inaction” [failure to post] could possibly constitute interference under the Act in isolated contexts in specific cases, it ruled that “the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.”

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Employers have been struggling for weeks now with how best to respond to this posting requirement, and a variety of approaches may all be valid based on a particular company’s workforce (both supervisory and rank and file), management style, and general approach to employee relations.

Regardless of the ultimate outcome of the posting requirement (and this ruling is likely to be appealed) the activist nature of a newly left-leaning National Labor Relations Board is going to have far-reaching impact on labor-management relations for many years to come.

This was originally published on Fisher & Phillips’ Legal AlertsThis Legal Alert is intended to provide an overview of an important new law. It is not intended to be, nor should it be construed as, legal advice for any particular fact situation.

Jim Walters is a senior partner in the Atlanta office of the law firm Fisher & Phillips. His practice has a strong emphasis on the representation of employers under the two principal federal labor laws, the National Labor Relations Act and the Railway Labor Act. In addition to representing employers in various industries in both collective bargaining and arbitration matters, he devotes a substantial amount of his time to defending companies charged with unfair labor practices or similar claims in cases before the NLRB, the NMB and numerous federal courts. Contact him at jwalters@laborlawyers.com.

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