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District Court Refuses to Block NLRB Notice Posting Rule During Appeal; April 30 Date Still Applies

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March 8, 2012

As we noted in an alert last week, the District Court for the District of Columbia issued its final order in National Association of Manufacturers v. NLRB on the challenge by the National Association of Manufacturers (NAM) and National Federation of Independent Business (NFIB) to the National Labor Relations Board’s notice posting rule. The court upheld the legality of the notice posting rule itself and, earlier this week, the court declined to block enforcement of the rule while NAM and NFIB appeal the decision.  Accordingly, employers still face an April 30, 2012, notice posting deadline, barring another successful court or legislative challenge.

Last week, the district court issued a split decision, upholding the part of the rule that will require many employers to post a new notice of employee rights under the National Labor Relations Act (NLRA) by April 30, 2012, and striking down two parts of the rule that would have created a new unfair labor practice for failure to post and would have allowed the Board to toll the statute of limitations for any unfair labor practice charge against an employer who was not in compliance with the new notice-posting requirement. The plaintiffs immediately appealed the part of the court’s order upholding the notice posting rule. The plaintiffs also sought an injunction preventing the Board from enforcing its notice posting rule pending their appeal. On Wednesday of this week, the court denied this “extraordinary remedy.”

The NAM and NFIB had argued that employers would be irreparably harmed without an injunction because the notice posting rule would require them to choose between posting the notice, and thereby surrendering their First Amendment rights, and electing not to post it and facing Board-imposed penalties instead. In this week’s order, D.C. District Court Judge Amy Berman Jackson found the First Amendment argument was the plaintiffs’ “weakest” argument and that it was unlikely to succeed on appeal. Observing that the Board had “already delayed implementation of the Rule twice,” Judge Jackson held that if “the Court of Appeals ultimately determines that the Board exceeded its authority in promulgating the Rule, the employer can take the notice down,” and that any “increased employee awareness” about rights under the NLRA would not irreparably harm employers.

The court also rejected the plaintiffs’ irreparable harm argument because the court had “struck down the part of the Rule that would have made failure to post an unfair labor practice.”  Instead, Judge Jackson held that the Board may only sanction employers for failing to post the notice if “the employer’s action in a particular case ‘interferes with, restrains or coerces employees’ in the exercise of their guaranteed rights.”  Notably, the court reaffirmed that its ruling did not prevent the Board from making “individualized determinations” that an employer’s failure to post the notice violates the NLRA. The Board has already signaled that it will use that authority to attempt to show that a failure to post the notice interferes with employees’ rights and is an unfair labor practice.

Another challenge to the rule is pending in a federal district court in South Carolina. We will continue to monitor that case and will keep you updated as to further developments. 

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