Last week's decision by a federal judge on the "posting rule"of the National Labor Relations Board was not a total loss for employers, but it was hardly a resounding victory.
In National Association of Manufacturers v. NLRB, Judge Amy Berman Jackson of the U.S. District Court in Washington, D.C., upheld the notice-posting requirement but found that the Board had exceeded its authority by creating a new unfair labor practice based on failure to post the notice, and by pre-determining by rule that a failure to post the notice would toll the six-month limitations period for filing unfair labor practice charges that is found in Section 10(b) of the NLRA. Unfortunately, these latter parts of Judge Jackson's ruling may provide little comfort to employers because, as the judge indicated in her decision, the Board may pursue these results on a case-by-case basis – just not by way of general rulemaking.
The Case and Analysis
The plaintiffs in the case, which included the National Right to Work Legal Defense and Education Foundation as well as the NAM, brought the court challenge to the Board rulemaking implemented in August 2011. They contended that the Board had no authority under the NLRA to make such a rule and that the rule interfered with employers' right to refrain from speech, thus violating the First Amendment to the U.S. Constitution. They also contended that the Board could not add a new unfair labor practice to those explicitly set forth in the NLRA and that the Board could not adopt a rule automatically imposing tolling of the Section 10(b) limitations period simply because of a failure to post the notice.
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