News & Events

NLRB Wins Round One (Sort Of)

A federal district court in D.C. ruled on March 2 that the NLRB had statutory authority to adopt its controversial August 2011 regulation, which will require most private sector employers to post a notification of employee rights under federal labor law. Nat’l Ass’n of Mfrs. v. NLRB, No. 11-cv-1629 (Mar. 2, 2012). The National Association of Manufacturers, National Right to Work Legal Defense and Education Fund Inc., Coalition for a Democratic Workplace, National Federation of Independent Business, and several small businesses had challenged the rule.

Finding that the National Labor Relations Act provides the NLRB a “broad, express grant of rulemaking authority,” Judge Amy Berman Jackson concluded that the NLRB’s posting regulation was not arbitrary and capricious. However, Judge Jackson found a provision that treats any failure to post the notice as an independent unfair labor practice exceeded the agency’s authority. Likewise, she concluded that a provision tolling the NLRA’s statute of limitations in any case where an employer failed to post the notice at that work site contravenes the statute’s language.

The NLRB rule takes effect April 30. But, another challenge is pending in the District of South Carolina. So, where are we? That depends on whether the parties in the D.C. case appeal, which is likely. In addition, the U.S. Supreme Court will likely strike down at least parts of the rule in the meantime. Given Judge Jackson’s ruling that a failure to post is not itself an unfair labor practice and the six-month limitations period is not automatically tolled, will HR departments rush to download these posters?

David P. Jaqua