Federal District Court in DC partially upholds controversial NLRB Rule

On March 2, 2012, a federal district court in Washington, D.C. issued a ruling in National Association of Manufacturers v. National Labor Relations Board holding that the National Labor Relations Board ("NLRB") had the statutory authority under the National Labor Relations Act ("NLRA") to promulgate a rule requiring most private employers to post notices of employee NLRA rights. Plaintiffs, National Association of Manufacturers, National Right to Work Legal Defense and Education Foundation, and Coalition for a Democratic Workplace, challenged the rule, which regulates the size and content of the notices and also requires certain employers to post online notices. Stressing the NLRB's "broad, express grant of rulemaking authority," the court deferred to the agency's interpretation of the NLRA as reasonable and also held that the rule was not arbitrary or capricious. The court also rejected the plaintiffs' argument that the rule violated employers' First Amendment rights.

However, the court held that two other provisions of the rule exceeded the NLRB's statutory authority and therefore could not be enforced. First, the court struck a provision stating that a failure to post notice constitutes an unfair labor practice under the NLRA. The court concluded that the NLRB could not make such "a blanket advance determination" but stated that the Board may consider whether such a failure constitutes an unfair labor practice in an individual adjudication. Second, the court rejected a provision of the rule that would toll the NLRA's statute of limitations in any case involving a job site where the employer did not post the notice, explaining that the provision was inconsistent with the statute, which explicitly provides for a six-month statute of limitations. 

Text of the opinion can be found here.