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National Labor Relations Board Posting Penalties Exceed Authority

The United States District Court for the District of Columbia issued a decision today finding that the NLRB posting requirement provision deeming a failure to post an unfair labor practice (ULP) and tolling the statute of limitations in ULP actions against employers who fail to post violate the National Labor Relations Act (NLRA) and are invalid as a matter of law.

The decision was the result of two suits by the National Association of Manufacturers (NAM) and National Right to Work Legal Defense and Education Foundation (NRTW) that were consolidated.  The NAM and NRTW suits alleged that the Board's promulgation of the "Notification of Employee Rights Under the National Labor Relations Act" exceeded its authority under the NLRA in violation of the Administrative Procedure Act and violated the plaintiffs' First Amendment right to refrain from speaking.  The Court found that the promulgation of the posting requirement did not exceed its statutory authority for the provisions of Subpart A - the notice posting.  However, subpart B providing for penalties in the event of failing to post violated the NLRA as a matter of law.

United States District Judge Amy Berman Jackson, in granting in part plaintiffs motions for summary judgment, has provided a significant victory to employers seeking to restrain the recent expansions of power sought by the Board.  In addition to the posting provisions, new rules for speedy elections are set to take effect on May 1, 2012.  Employers should consult with their labor counsel in anticipation of these changes to review their current situations and plan accordingly for the future.

By: Justin A. Morocco

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