Employers hoping for a court-ordered reprieve from the National Labor Relations Board’s proposed rule requiring the posting of a notice advising employees of their rights to unionize under the National Labor Relations Act now face a difficult 3rd and long situation.

As we have written about in this forum previously here and here, the Board’s political pro-union agenda may have hit its zenith back in August of 2011 when it promulgated this rule requiring such a posting – a notice, by the way, which wouldn’t just advise employees of their right to concerted activity, but also advise them of what employers are not permitted to do.

Shortly after the proposed rule was promulgated, several groups – including but not limited to the National Association of Manufacturers – sued the NLRB in Federal Court in Washington, D.C., challenging the First Amendment constitutionality of the requirement and contending that the Board overstepped the bounds of its authority under the statute in promulgating the posting rule.

Just recently, and in a big blow to employers, after the Board first agreed to delay implementing the posting rule to permit the legal challenge to be heard, District Court Judge Amy Berman Jackson ruled that the Board did have proper authority to require the posting under the National Labor Relations Act, even though the Act does not specifically give authority to post such a notice.  In so deciding, Judge Jackson felt that the powers given in the Act were broad enough to permit the Board to make rules needed to carry out the law’s provisions – including the promulgation of a notice-posting requirement, if the Board so elected.

Judge Jackson did throw employers a few small bones in her decision, invalidating other parts of the rule which defined a failure to post the notice as a per se unfair labor practice and which tolled the statute of limitations in such cases where the notice was not posted, but those determinations can only charitably be described as tokens and nothing more.

Notably, Judge Jackson also refused to hear an argument from the NAM that the Board no longer had the authority to implement the posting rule because it didn’t have a quorum of members.  We have previously written here about the dispute earlier this year surrounding whether the U.S. Senate was in recess when the President appointed two more NLRB members to give it four members in total – thus, a quorum again after the expiration in December of a prior recess appointment.

The posting rule currently is set to take effect April 30, with perhaps the last remaining legal hope for employers on this issue coming from the appeal of Judge Jackson’s decision to the D.C. Circuit, which the NAM has already taken.  Hopefully it’s not a bad omen that Judge Jackson refused to stay the posting rule pending that appeal, as the NAM requested.  Now, employers have to hope that the Circuit Court grants a similarly-requested stay, overturns Judge Jackson, or that a similar hail-mary suit in a District Court in South Carolina turns out favorably.

Visit the Employment Essentials blog frequently for updates on this issue in advance of April 30.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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