Monday, April 16, 2012

Federal court strikes down NLRB poster rule

In a setback to NLRB efforts, a federal court overturned the labor agency's notice posting rule.  Ruling in the case Chamber of Commerce of the United States v. NLRB, the court found the agency "exceeded its authority in violation of the Administrative Procedures Act", blocking the agency from requiring employers to posters which would have served as advertising for labor unions in the workplace.

According to Gray Geddie, Ogletree Deakins’ former chairman and the attorney who argued the case, "the court preserved the role of the NLRB as a quasi-judicial arbiter of employee rights, rather than an advocate for unions and unionization".

It still remains to be seen if the federal agency will now delay implementation of the notice posting rule until appeals are resolved, or whether the plaintiffs will be forced to apply to the court for a permanent injunction to prohibit enforcement of the rule on a nationwide basis.

In its opinion, the court held that the Board lacked the authority to promulgate the rule under the NLRA’s plain language, structure, and legislative history. The court stressed that the National Labor Relations Act (NLRA) does not expressly authorize the NLRB to promulgate a posting rule, in light of multiple congressional amendments to the NLRB and in contrast to cases in which Congress has expressly authorized other agencies to require the posting of employee notices.

The court’s opinion conflicts with a decision issued in March by a federal district court in Washington, D.C. that upheld the NLRB’s authority to issue the notice posting rule, but limited the remedies available to the Board under the rule for failure to post. The trade associations and the NLRB have appealed that decision to the D.C. Circuit, where the business groups have requested a stay of enforcement pending appeal.


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