March 13, 2012

NLRB’s posting requirement upheld – but weakened – by federal judge

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requrements tagged , , , , , , , , , , , , at 9:05 am by Tom Jacobson

A federal judge has ruled that part of the new poster requirement imposed by the National Labor Relations Board is valid, but other parts of the rule go too far.  As noted in my previous articles (A post about posters – new workplace posting requirement imposed by NLRBNLRB’s posting requirement delayed, and NLRB’s posting requirement delayed again), the posting requirement goes into effect on April 30, 2012, and it will require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The notice can be downloaded from the NLRB’s website.

The National Association of Manufacturers has challenged the requirement in a lawsuit brought against the NLRB in the United States District Court for the District of Columbia. In a 46 page opinion issued on March 2, 2012 Judge Amy Berman Jackson ruled that the posting requirement itself is lawful.

However, Judge Berman Jackson also concluded that other parts of the NLRB’s rule went too far. Specifically, she ordered that the NLRB exceeded its authority when it tried to make any failure to post the notice an unfair labor practice (ULP). She also concluded that the NLRB’s rule went too far by tolling the statute of limitations (that is, extending the time for taking legal action) in any future ULP action involving a job site where the notice was not posted.

What you need to know: Unless is it completely overturned in court, withdrawn by the NLRB, or stopped by congressional action, this posting requirement will go into effect on April 30, 2012. Even though Judge Berman Jackson has weakened the requirement by declaring that “the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice,” the NLRB can still make the case that a failure to post is a ULP if the NLRB can “make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.” To reduce that risk, post the notice.

For more information about this issue, please contact me at

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA


1 Comment »

  1. […] was issued in the National Association of Manufacturers lawsuit I noted in my previous article, NLRB’s Posting Requirement Upheld – but Weakened – by Federal Judge.  For more information about the appellate court’s injunction, see NLRB Union Poster Rule […]

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