On March 2, a U.S. District Court issued a decision in the legal challenge against the National Labor Relations Board’s (NLRB) biased “employee rights” notice posting requirement, ruling that the NLRB has the authority to mandate the notice posting itself, but it cannot impose an up-front, blanket penalty policy for failure to post.

The ABC-led Coalition for a Democratic Workplace (CDW), in conjunction with the National Association of Manufacturers, filed the lawsuit Sept. 26, shortly after the NLRB released the final version of the poster, which contains only a select list of employee rights granted by the National Labor Relations Act (NLRA).

In the lawsuit, both groups asserted that the NLRB does not have the authority under the NLRA to issue the rule, to which the court disagreed. The judge eliminated the blanket penalty policy, but ruled that failure to post can still result in tolling of the statute of limitations, and serve as evidence of anti-union animus in unfair labor practice investigations on a case-by-case basis. 

“The Board simply does not have authority to require this poster and the Coalition for a Democratic Workplace will appeal this decision and continue to vigorously pursue a fair, full and correct legal remedy,” said CDW Chairman and ABC Vice President of Federal Affairs Geoffrey Burr. CDW and the other litigants appealed the decision on March 5.

In addition to its participation in the lawsuit and appeal, ABC has produced an 11-by-17-inch supplemental notice designed exclusively for nonunion contractors outlining additional rights granted under the NLRA. The supplemental notice is intended for optional use on or after the current April 30 effective date. Please note, the ABC notice can be posted in addition to the NLRB poster in a similar fashion, but not in lieu of it. 

The official NLRB notice and ABC’s supplemental notice can be downloaded at www.abc.org/nlrbposter

The judge in the notice posting case also declined to consider an additional motion challenging President Obama’s “recess” appointment of three NLRB members in January, stating that because the poster rule was finalized before the controversial appointments were made the issue was not relevant in this case. CDW in January joined with leading employer associations to file a motion to block the appointments.

ABC will keep members and chapters informed of any new developments regarding the legal challenges or the rule’s effective date.