Major Business Groups Challenge Decision Upholding NLRA Posting Requirement

A powerful group of business associations is appealing a decision by a federal district court in Washington, D.C.

The appeal revolves around the National Labor Relations Board (NLRB) and its requirement mandating that most private employers display a new poster informing workers that they have a right to form a union.

In a March 2 decision, U.S. District Court Judge Amy Berman Jackson upheld an NLRB requirement that businesses display a very large poster defining employee rights under the federal National Labor Relations Act (NLRA).

Judge Berman Jackson also ruled that the NLRB does not have the legal authority to enforce the posting requirement as an unfair labor practice. However, an unfair labor practice charge can be considered in individual cases.

The requirement to display the NLRA poster has been delayed twice and now has an April 30, 2012 deadline for businesses to meet the mandatory posting rule.

Judge Berman Jackson’s decision is being challenged in the Federal Court of Appeals in Washington, D.C. by a coalition of business groups, including the National Federation of Independent Businesses, the National Association of Manufacturers and the Coalition for a Democratic Workplace.

In her decision, the judge represented that the NLRB was well within its authority to issue the posting requirement and that it is a reasonable means of promoting awareness to employees of their legal right to form unions or engage in collective bargaining.

The business associations’ claim in their appeal that the NLRB does not have rulemaking authority. Additionally, that by the NLRB requiring these posters businesses would be compelled to  represent  a position against their will and in violation of the free speech rights under the First Amendment.

In addition to the legal challenge from the business associations, three pieces of legislation designed to prevent enactment of the NLRA posting requirement have been introduced in the U.S. Senate and House of Representatives. Those bills — S.166, H.R. 2833 and H.R. 2854– have been referred to legislative committees for further consideration.

We will continue to monitor appellate court developments  and legislative action as they pertain to the NLRA posting requirement. We will publish an updated federal labor law poster with the new NLRA poster before the April 30 deadline, subject to developments.

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