First Court to Rule on NLRB Notice Posting Regulation Upholds Posting Requirement

On March 2, 2012, a federal court in Washington, D.C., upheld most of the National Labor Relations Board (NLRB) notice posting rule. The posting rule is described here, here, and here. The court upheld the NLRB’s right to issue the posting requirement but invalidated the remedial portions of the rule. The court ruled that failing to post the notice cannot automatically constitute an unfair labor practice. The NLRB would have to prove each unfair labor practice on a case-by-case basis.  The court likewise invalidated the portion of the rule automatically tolling the statue of limitations in unfair labor practice cases involving a job site where the notice was not posted.  However, the court again left the door open for the NLRB to make such decisions on a case-by-case basis. The plaintiffs in the case also included a challenge to the president’s right to make recess appointments to the NLRB earlier this year while the Senate was not technically in recess. As expected, the judge refused to consider this challenge, leaving the issue to be decided in a future case. In essence, the posting requirement stands for now, and penalties may be assessed on a case-by-case basis. Both parties are likely to appeal the decision, and a decision in a separate lawsuit challenging the rule in a South Carolina federal court is still pending.  As a result, the posting requirement might be delayed further or struck down altogether.  Until such a ruling occurs, employers are advised to be prepared to post the notice by the current deadline of April 30, 2012.  Click here for information about obtaining the poster. Click here for the court opinion. For more information, please contact Denise Gold at (703) 837-5326 or goldd@agc.org.