Court Battle With NLRB Continues

A federal trial court in the District of Columbia has ruled the National Labor Relations Board (NLRB) was within its legal powers when it issued a rule requiring employers to post notices about union rights.

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 (Obama appointee who represented nine term Representative for Louisiana’s 2nd congressional district, William J. Jefferson in his corruption trial in 2009.) 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 National Federation of Independent Business (NFIB) has filed a notice of appeal and is also seeking to enjoin the rule pending appeal; otherwise the punitive rule will take effect on April 30, 2012.

The challenge to the poster rule will be decided by the federal Court of Appeals in Washington, D.C.

“In issuing its decision, the district court has failed to protect the small-business community from frivolous lawsuits by unions and other costly and punitive measures,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “While the court did find that the NLRB does not possess the authority to enforce the poster rule as an unfair labor practice, the decision endorses NLRB’s authority to issue rules in the first place. As a result, small business-owners are vulnerable to the whims of the NLRB, which has devolved from a neutral arbiter between labor and employers to a pro-union government agency. We will be appealing our claims that the NLRB does not have rulemaking authority, our First Amendment claim and our challenge to the alleged recess appointments.”

Our advice to members remains to post nothing until April 30, 2012. Joe Schmitt, our HR attorney is keeping a very close eye on this case and we will continue to keep members updated on any changes coming from the courts or NLRB.