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DC Circuit Court of Appeals Enjoins NLRB Posting Rule

The DC Circuit Court of Appeals has temporarily enjoined the National Labor Relations Board’s (NLRB) rule which, under the National Labor Relations Act (NLRA), requires businesses to post the statement of employee rights effective April 30, 2012. Under the posting rule, the NLRB required most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act. Such rights included the right to unionize, as well as negotiate with their employers about the terms and conditions of their employment.

The posting was required to be in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers were also required to publish a link to the notice on an internal or external website if other personnel policies or workplace notices were posted there. Employers who did not comply with the posting requirement could be cited for an unfair labor practice. Additionally, the six-month period unions and employees have to file unfair labor practice charges would be extended to account for non-compliance.

The DC Circuit Court of Appeals felt a postponement of the effective date of the posting rule was warranted after two recent court decisions. In South Carolina, a federal trial court ruled the whole NLRB’s posting rule was invalid and that the NLRB’s power to create new rules was limited to those that are “necessary” to carry out the NLRA’s provisions.

In Washington, D.C., a federal appeals court held the requirement to post was valid, however, the portions of the posting rule which made the failure to post an unfair labor practice and a basis for tolling the time period to file unfair labor practice charges were not valid. This decision was the one appealed to the DC Circuit Court of Appeals.

The NLRB has reaffirmed its commitment to the posting rule but has agreed not to implement the rule pending resolution of the appeal of the D.C. court’s decision and the anticipated appeal of the South Carolina court’s ruling.

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in the above-referenced case. The commentary is for educational and commentary purposes only. If you would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.