RW Employment Law News: Federal Court upholds Notice Posting Rule but revokes most consequences of non-posting

By Rudman Winchell Attorney

The National Labor Relations Board has issued a rule requiring that, effective as of April 30, 2012, all employers covered by the National Labor Relations Act must post a notice of union rights. The posting requirement has now been upheld by a court.

In a March 2, 2012 decision, the US District Court for the District of Columbia decided a challenge to this notice posting requirement brought against the NLRB by the National Association of Manufacturers. The court affirmed the Board’s authority to require posting of the notice. However, the court invalidated portions of the new rule which (a) declared that failure to post will constitute “an unfair labor practice,” in violation of the NLRA, and (b) extended the six-month limitations period to file an unfair labor practice complaint against any employer who failed to post the notice. The latter provisions directly conflicted with terms of the Act, the court held, while the notice itself was found to be within the broad regulatory authority given the Board by Congress. (A failure to post may still be held to be evidence of an employer’s unlawful intent, under a part of the rule not challenged in court.)

So, absent an appeal from this ruling or other court action, employers must post the notice as of April 30. The notice, and posting instructions, may be found here:

http://www.nlrb.gov/poster

If you have questions about the law or labor matters, feel free to contact Frank McGuire or another member of the Rudman Winchell employment law team.

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