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March 5, 2012

On March 2, a federal district court in Washington, D.C., held that the National Labor Relations Board (NLRB) had statutory authority to adopt an August 2011 regulation that 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, D.D.C., No. 11-cv-1629, 3/2/12).

Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia upheld the rule against challenges brought by 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.

Finding that the National Labor Relations Act provides the board a “broad, express grant of rulemaking authority,” Jackson rejected claims that NLRB’s decision to require the posting was arbitrary and capricious.

But Jackson found that two portions of the rule may not be enforced by NLRB. She concluded that the board exceeded its statutory authority in promulgating a provision that would treat any failure to post the required notice as an unfair labor practice under the act. She also held that a provision tolling the National Labor Relations Act’s (NLRA) statute of limitations in any case at a jobsite where an employer failed to post the mandated notice was inconsistent with the language of the statute.

The court rejected a request by several plaintiffs that she rule on the validity of President Obama’s January recess appointments of three NLRB members. Noting that the notice posting rule was adopted months earlier by a “quorum of undisputedly duly authorized members,” she said the recess appointment controversy had “absolutely no bearing” on her consideration of the rule.

The rule will apply to any employer covered by the NLRA, excluding states or political subdivisions not subject to board jurisdiction. The NLRB estimated in its notice of proposed rulemaking that the “great majority” of 6 million small businesses in the United States will be required to comply with the notice-posting requirement.

The rule originally was set by NLRB to become effective in November 2011. The agency postponed the effective date to Jan. 31, 2012 and then extended the date to April 30 when Jackson commented at a Dec. 19, 2011, hearing that it would be helpful for her to have additional time to review the legal issues.  03.05.2012

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