eLABORate: Federal Judge Rejects Request for Stay in Implementation of Union Rights Posting Requirements

March 09, 2012

A federal judge has ruled that implementation of a rule, requiring most private sector employers to post notice of employee union rights, will not be stayed pending an appeal of the court ruling allowing it to proceed.

On Friday, March 2, 2012, the U.S. District Court for the District of Columbia upheld the authority of the National Labor Relations Board ("NLRB") to require employers to display posters, informing employees of their right to join unions and engage in other activities under the National Labor Relations Act. The NLRB posting rule was initially published on August 30, 2011, but had been legally challenged by the National Association of Manufacturers and a host of other pro-business groups. U.S. District Court Judge Amy Jackson ruled that the NLRB was within its authority to promulgate the rule.

On Monday, March 5, 2012, litigants opposing the posting requirement asked Judge Jackson to stay implementation of the rule while their appeal of her decision is pending before the United States Court of Appeals for the DC Circuit. On Wednesday, March 7, 2012, Judge Jackson rejected the request, requiring employers to comply with the posting requirement as of April 30, 2012.

The March 2, 2012 ruling was not a total loss for the pro-business plaintiffs. While okaying the posting requirement, the Court held that the NLRB did exceed its authority by including a provision in its rule that an employer’s failure to post would automatically be considered an actionable unfair labor practice.

Barring any intervening action by the DC Circuit, employers will be required to post the 11-by-17-inch notice on April 30, 2012. The notice is available from the NLRB through its website, www.nlrb.gov . It also is available from commercial providers.

Should you have any questions concerning the notice requirement, please contact your Phelps Dunbar attorney.