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Federal Court Partially Rejects Challenge to NLRB Posting Rule

Labor & Employment Law Alert David B. Kern, Fred Gants

On March 2, 2012, Washington, D.C. United States District Judge Amy Berman Jackson issued a split decision on challenges to a National Labor Relations Board ("NLRB" or the "Board") rule requiring employers to post a notice of employee rights under the National Labor Relations Act ("NLRA" or the "Act"). We previously described the Board's final rule in our August 2011 alert, NLRB Issues Final Rule Requiring Employers To Post Notice of Union Organizing and Other Rights.

Judge Jackson held that the Board had authority, under the NLRA, to promulgate a rule mandating the posting of notices of employee rights by virtue of the Act's broad grant of rulemaking authority. She held that the Board's action in promulgating the rule was reasonable, in light of its effort to inform employees of their rights under the Act. Judge Jackson also found that the Board did not act arbitrarily and capriciously in justifying the rule based on its conclusion that many employees are unaware of their rights under the Act.

Judge Jackson did find, however, that the aspect of the rule specifying that a failure to post the notice constituted an unfair labor practice exceeded the Board's authority. Judge Jackson also held that the portion of the rule stating that a failure to post the notice tolled, or suspended, the running of the statute of limitations under the Act exceeded the Board's authority.

Finally, Judge Jackson rejected a First Amendment challenge to the rule that the employee rights poster forced employers to speak against their will. Instead, the judge held that the poster was "government speech," which is not subject to scrutiny under the Free Speech clause of the First Amendment.

The plaintiffs in the case, the National Association of Manufacturers and The National Right to Work Legal Defense and Education Foundation, are expected to appeal Judge Jackson's decision. Unless the rule is enjoined by another federal court currently considering a separate challenge to the rule, or is stayed pending an appeal of Judge Jackson's decision, it is scheduled to go into effect on April 30, 2012.

If you have questions regarding the Board's final rule or the recent federal court ruling, please contact David B. Kern at (414) 277-5653 /, Fred Gants at (608) 283-2618 /, or your Quarles & Brady LLP attorney.