Court upholds NLRB poster rule, finds some enforcement rules invalid, and rejects attempts to add a challenge to recess appointments

Posted on 03/02/2012 at 04:25 PM by Russell Samson

A federal district court judge in Washington, D.C., ruled today that the NLRB acted within the scope of its authority under the National Labor Relations Act in promulgating Subpart A of a Final Rule entitled Notification of Employee Rights Under the National Labor Relations Act.  As we explained in a blog post on September 1, 2011, the Subpart A requires virtually all employers subject to the National Labor Relations Act (NLRA) to post a notice in the workplace about workers' rights under the NLRA.  Under the present NLRB expectations, the notices are to be posted no later than April 30, 2012.  But one can probably expect an appeal of this ruling to the United States Circuit Court of Appeals for the District of Columbia. In the same ruling,  in a consolidated action, one brought initially by the National Association of Manufacturers ('NAM') and others, and the second by the National Right to Work Legal Defense and Education Foundation and others, the federal district court judge concluded that certain provisions of 'Subpart B' of the Final Rule are invalid as a matter of law.  Subpart B is entitled 'Subpart B General Enforcement and Complaint Procedures' and includes a rule that failure to post the Notice can be an unfair labor practice.  The district court judge concluded that this provision exceeded the NLRB's authority to the extent that it purported to establish a per se rule applicable in all situations.  The court continued, however, that the NLRB could determine – on a case-by-case basis – that a failure to post the Notice constituted an unfair labor practice.  The court cautioned that the NLRB must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post the Notice 'interfered with the employee's exercise of his or her rights.'  The court emphasized that it was 'simply hold[ing] that the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.' The district court also concluded that a provision in the Subpart B rules that would have tolled the 180-day statute of limitations for filing unfair labor practice actions against employers who have failed to post the Notice also exceeded the Board's authority under the law, and thus was invalid.  While the court looked at the language of Subpart B, Section 104.214(a), it also looked at the language of the preamble to the rule.  The court was not impressed that the language of the rule itself used the word 'may.'  Rather, the court looked to the preamble to the rule which, the court noted, demonstrated that the intent was to 'establish[] tolling as the standard practice unless the employer can prove to the Board that it should not be applied.'  While conceding that the NLRB could determine that equitable tolling should be applied in a specific case where the plaintiff – the entity seeking its application – establishes that it should, the NLRB's rule 'turns the burden of proof on its head . . . demand[ing] that the employer prove that across the board, unlimited extension should not apply.' Also on Friday, the same judge issued a separate decision overruling a motion by various plaintiffs to amend their initial complaint to, in effect, add a challenge to the 'recess' appointment of three new Board members.  The judge noted that whatever 'trial' there was going to be in the initial action (which had only challenged the 'posting' rules) had already taken place prior to the time the amendment was sought.  Nothing in the judge's ruling prevents an independent action challenging the recess appointments. As of today, at least, unless a conscious decision has been made not to comply with the requirement, employers should be finalizing preparations to assure the NLRB-required notices are in fact posted – physically and electronically – on or before April 30, 2012.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.


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