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NLRB "Employee Rights" Posting Survives First Court Challenge, But Enforcement Powers Limited

March 5, 2012

In the first legal challenge to the National Labor Relations Board’s controversial posting requirements, the United States District Court for the District of Columbia upheld the NLRB’s statutory authority to adopt a rule requiring private employers to post a notice of employees’ rights under federal labor law.

Considering challenges from several employers’ groups and small businesses, Judge Amy Berman Jackson concluded that the National Labor Relations Act grants the NLRB broad rulemaking authority and rejected claims that the posting rule exceeded that authority.

While upholding the NLRB’s authority to promulgate the notice posting rule, Judge Jackson rejected two portions of the rule related to its enforcement. First, Judge Jackson concluded that the NLRB exceeded its authority by including a provision that would treat an employer’s failure to post the required notice as a per se unfair labor practice. Second, she concluded that a provision in the rule that would toll the NLRA’s statute of limitations in any workplace in which the notice was not posted was inconsistent with the express language of the Act.

The Employee Rights posting requirement is scheduled to take effect on April 30, 2012. A second challenge to the rule is currently pending in the United States District Court for the District of South Carolina.

The controversial Employee Rights poster sets forth employees’ rights under the National Labor Relations Act, including the right to form or join a union and the right to strike or establish picket lines. The poster also lists certain employer conduct which is prohibited under the NLRA.

In the event you have questions about the extension of the Employee Rights posting requirements or the NLRB’s jurisdiction, contact any of the attorneys in the Greensfelder, Hemker & Gale Employment & Labor Department.