Wyatt Employment Law Report


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NLRB Notice Posting Regulation is Dead

By Edwin S. Hopson

Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers (whether they had a union or not) subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA.  On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case. The time for seeking U.S. Supreme Court review has now passed with no appeal by the NLRB.

According to a recent Huffington Post news report, the NLRB has decided not to fight this battle any further.  Also quoted in the Huffington Post report was the President of the National Association of Manufacturers, who stated:

“Manufacturers start off the new year with great news in our fight against an overreaching NLRB. This is the culmination of the NAM’s aggressive legal pursuit against a government-imposed regulation that would create a hostile work environment while injecting politics into manufacturers’ day-to-day business operations.”


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Court Invalidates NLRB’s Notice Posting Rule

 By Edwin S. Hopson

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013), regarding the NLRB’s issuance of a regulation in August 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, post a NLRB notice to employees regarding employee rights under the NLRA. The regulation had been stayed pending resolution of the National Association of Manufacturers case.

The court of appeals held that the notice posting regulation was contrary to Sections 8(c) and 10(b) of the NLRA and therefore invalid in its entirety. 

While the court found that the NLRB had a lawful quorum at the time the rule was issued in 2011, it nevertheless stated (without deciding) that former NLRB Member Craig Becker, a recess appointee, was not validly appointed, citing its recent decision in Noel Canning v. NLRB.

The notice posting decision may be found at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/E16F1375FA672CCE85257B64004E8BB2/$file/12-5068-1434608.pdf

 


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Federal Court of Appeals Blocks NLRB’s Notice Posting Rule

By Edwin S. Hopson

The Washington Post, quoting from a story by the Associated Press, reported on Tuesday, April 17, 2012, that the U.S. Court of Appeals for the District of Columbia Circuit had “temporarily blocked the National Labor Relations Board from making millions of businesses put up posters informing workers of their right to form a union.” The court of appeals is reviewing an appeal of an earlier ruling by a U.S. District Judge for the District of Columbia upholding the notice posting regular, in part. 

The NLRB rule requiring all private employers subject to the jurisdiction of the NLRB to display the posters was take effect on April 30, 2012.  However, the court ruled that can’t be implemented until the legal challenges to regulation are resolved.


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Federal Judge Issues Ruling on NLRB’s Rule Requiring Notice Posting

By Edwin S. Hopson

In National Association of Manufacturers v. National Labor Relations Board, et al., Civil No. 11-1629 (ABJ), U.S. District Judge Amy Berman Jackson, an appointee of President Obama’s, issued her decision on March 2, 2012, granting in part and denying in part the plaintiff association’s request to block the NLRB’s new notice posting rule which is to go into effect April 30, 2012. JudgeJackson ruled that the NLRB did not exceed its authority under the National Labor Relations Act by requiring all employers subject to the Act to post a notice advising employees of their rights under the Act.  However, she also ruled that the portion of the rule which would deem an employer’s failure to post the NLRB notice to be an unfair labor practice, and the provision that tolls the statute of limitations in the case of unfair labor practice charges where the employer failed to post the notice, do in fact violate the Act and are therefore invalid as a matter of law.

The district judge declined to take up a challenge to the recess appointments by President Obama to the NLRB that occurred after the Board’s issuance of the notice-posting regulation in question.

The full text of the ruling may be found at:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1629-59


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NLRB Postpones Effective Date of its Notice Posting Rule to January 31, 2012

By Edwin S. Hopson

On October 5, 2011, the National Labor Relations Board announced that it has postponed the implementation date for its new notice-posting rule to January 31, 2012.  It had originally been scheduled to become effective on November 14, 2011. 

The U.S. Chamber of Commerce and the National Association of Manufacturers have filed suit to block the new rule, but there has been no ruling in those cases. 

The NLRB cited as reasons for the extension, the need for more time “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”  No other changes in the rule, or in the form or content of the notice, were made.

 Member BrianE.Hayes, who dissented from the original adoption of the rule, agreed with the postponement of the effective date of the rule.


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Trade Group Files Suit Against NLRB to Block Its Notice Posting Rule

By Edwin S. Hopson

On September 8, 2011, the National Association of Manufacturers (NAM) filed suit in the U.S. District Court for the District of Columbia to stop the National Labor Relations Board from implementing its “Posting Requirement” rule.  The NLRB’s rule, which is slated to be effective in mid-November, 2011, would require all private employers who are not government contractors to put up posters informing employees in great detail of their right to organize and obtain union representation.  See Wyatt blog posted December 21, 2010.  The legal action asserts that the NLRB is acting outside its jurisdiction in promulgating the rule and requests that the rule be set aside.

NAM’s press release quoted NAM CEO Jay Timmons as stating:

“This rule is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have. The growing list of burdensome actions from the NLRB is causing great uncertainty among manufacturers at a time when our economy is struggling to recover. We are committed to fighting this rule in order to rein in the NLRB. We also are encouraging Congress to act soon to stop this rogue agency.”

A copy of the complaint can be found at:  http://www.crowell.com/files/National-Association-of-Manufacturers-v-National-Labor-Relations-Board.pdf