Judge: NLRB can require employers to display union posters

The National Labor Relations Board (NLRB) was within its legal powers when it issued a rule requiring employers to post notices about union rights, a judge ruled Friday.

The rule would require employers to display notices about collective bargaining rights, and has been challenged in court by several trade associations. 


In a memorandum opinion filed Friday, U.S. District Judge Amy Berman Jackson said the NLRB did not exceed its statutory authority in issuing the rule. She did rule, however, that the NLRB cannot “make a blanket advance determination that a failure to post [the notice] will always constitute an unfair labor practice,” though it can be considered in individual cases.

The chairman of NLRB said he was pleased that the judge upheld the poster rule.

“This notice will provide American workers with meaningful awareness of their rights and protections under federal labor law,” NLRB Chairman Mark Pearce said in a statement. “It is particularly gratifying that the court was willing to decide the case on an expedited basis, leaving plenty of time for employers to comply before the rule takes effect on April 30, 2012. “

Reaction from business groups was mixed.  

“We are pleased that the court has recognized that the Board far exceeded its statutory authority in attempting to take punitive enforcement measures against small-business owners who failed to comply with the poster rule,” said Karen Harned, executive director of the National Federation of Independent Business’s (NFIB) Small Business Legal Center.

The judge also refused to take up a challenge to President Obama’s recess appointments to the NLRB and denied a First Amendment claim against the poster rule, disappointing business groups.

Harned said the court “did not go far enough by failing to determine that the NLRB does not have rulemaking authority, in denying our First Amendment claim, and in denying our challenge to the alleged recess appointments. NFIB plans to appeal the decision in part.”

In her ruling, Berman Jackson said, “nothing in the notice posting suggests that employers favor collective bargaining activities, and nothing in the regulation restricts what the employers may say about the Board’s policies. … The notice, which is clearly stamped with a government seal, does not call for the employer to take a position or express a view on the law.” 

The judge also refused to take up a challenge to the legality of recess appointments made to the labor board by Obama in January. The judge said groups suing tried “to shoehorn” the challenge into the original lawsuit against the poster rule, filed last September, and the court would not take up “a political dispute.”

The lawsuit is not over, as groups involved in the challenge said they’re considering all of their options. 

“The facts in this case and the law are on the side of manufacturers, and we believe today’s decision is fundamentally flawed,” Jay Timmons, president and CEO of the National Association of Manufacturers, said in a statement. “We are considering all options as we determine the best path forward for protecting our manufacturing economy and the 12 million people working in manufacturing in the U.S. from the NLRB’s regulatory overreach.”

Others involved in the lawsuit said an appeal was under consideration.

"An appeal is very likely," said Patrick Semmens, legal information director for the National Right to Work Foundation.