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Judge Throws Out Union Posting Rule

Tuesday, April 17, 2012

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A federal judge in North Carolina has thrown out an impending federal rule that would have required nearly six million employers to prominently display notices of employees’ union rights.

The National Labor Relations Board “exceeded its authority” in ordering employers to post the Notification of Employee Rights, U.S. District Judge David C. Norton ruled Friday (April 13) in a suit brought by the U.S. Chamber of Commerce.

National Labor Relations Board

Norton said the agency “lacks the authority to promulgate the notice-posting rule,” making the measure “unlawful.”

The 194-page rule was issued in December 2010, drew nearly 7,000 comments, and was to have taken effect Nov. 14, 2011. Lawsuits filed Sept. 8 by the National Association of Manufacturers and Sept. 19 by the Chamber of Commerce pushed back implementation to Jan. 31 and then to April 30.


The rule requires employers to post “conspicuous” notices advising employees of their rights under the National Labor Relations Act (also known as the Wagner Act), including NLRB contact information and procedures. The poster also gives examples of illegal union conduct and sets a six-month clock for employees to file an Unfair Labor Practice complaint.

The rule deems any violation of the posting rule an Unfair Labor Practice with harsh penalties and allows NLRB to suspend the statute of limitations for complaints in certain cases.

Chipping Away

On March 2, a federal-court judge in Washington, DC, chipped away at the rule in the case filed by NAM.

That judge threw out both the blanket enforcement mechanism that would have classified a poster violation as an Unfair Labor Practice and rejected suspension of the statute of limitations.

The judge upheld the legality of the rule itself, however.

Not Norton. In the Chamber of Commerce case, he noted that the 77-year-old NLRB had been “almost unique” among federal agencies in not requiring employers to post general notices of their employees’ rights.

That’s no accident, Norton noted. Congress created the NLRB as a reactive body, with no authority to initiate cases. The board rules only on cases brought by unions, private employers and other private parties.

‘A Modest Step’

The NLRB itself admitted that the rule was a departure from its traditional functions but said it was “a modest step” needed to fill “a regulatory gap” left by Congress.

Even the board’s general counsel noted last year, “The agency has no authority to initiate proceedings on its own.”

 National Labor Relations Board Member Brian Hayes
National Labor Relations Board Member Brian Hayes dissented from the rule, saying the agency lacked the authority to order or enforce it. The judge agreed.

Norton agreed, finding no “gap” in the agency’s statutory framework. The ruling also cites the reasoning of Brian E. Hayes, an NLRB board member who cast the lone dissenting vote against the rule.

Hayes argued that because Congress specifically gave notice-posting authority to many other agencies—including some created about the same time as the NLRB—but has repeatedly omitted that authority in the NLRA, it must not have intended to give the NLRB that power.

In addition, the rule “‘is not necessary’” to carrying out any provision of the NLRA, the court said.

Flexing its Muscles

“The Board may not promulgate rules that enlarge its authority beyond the scope intended by Congress,” the decision said.

It said the board “went 75 years without promulgating a notice-posting rule, but it has now decided to flex its newly discovered rulemaking muscles.”

NLRB did not respond to a request for comment on the ruling. On Tuesday (April 17), the agency web site was still publicizing the April 30 deadline for employers to comply.


Tagged categories: Labor; Regulations; Unions

Comment from Car F., (4/18/2012, 10:53 AM)

It is esential for freedom and liberty to kep people ignorant of their rights, specially if those rights may involve paying higher wages and overtime. Our wonderful Chamber of Commerce is a primary example of corporations looking after corporations, why would they be concerned with the common working person's rights? Ignorance is a blessing [if it saves corporation's money], keep the race to the bottom!!! and a happy bottom line...

Comment from Darrell Manley, (4/18/2012, 11:36 AM)

Car, Please spare me the righteous indignation! Do you really believe that, in these times of 24/7 news cycles, all those workers are ignorant and live in a vacuum? My 13 year old daughter studied the NRLB rulings in school. I am glad that the Chamber and courts are fighting against the wrongful seizure and exercise of authority by the Federal government.And who are those mean and greedy Corporations? People; workers, management and stockholders. If you have any money in a 401k you are invested in those mean old corporations.

Comment from Billy Russell, (4/19/2012, 3:51 AM)

Car, that post is for some out there Rag not the prestigious Paintsquare web site that we all rely on for LOGICAL information and or a differance of opinion.I agree with the "RIGHT TO WORK " NC did the right thing based on the facts of the article. perhaps you should find something constructive to do leave the rolling papers alone brother thats not cool any more bro

Comment from Jerry Trevino, (4/19/2012, 8:34 AM)

Car, you have the wrong definition of freedom and liberty. Imposing more and more regulations and enslaving employers is not freedom. Union bosses should start their own corporations, employ union workers and compete with the rest of the real world. They can not. Just look at our education system. Look at Greece and Spain. These United States is being dragged down to the level of third world countries. All major innovation, science breakthroughs, computer and software development had nothing to do with unions. Unions stifle creativity and greatness. Unions create only monolithic food stamp type entitlement mentalities versus creativity to progressively move this county forward to self reliance.

Comment from Car F., (4/19/2012, 10:59 AM)

Interesting replies from the thoroughly indoctrinated. The true believers in freedom that can’t stomach a threatening piece of paper displayed on a wall: what a horrible threat!...“let them eat cake” Nothing is worse and more paralysing than fear, except information. Let’s all run and join the Third World countries in a happy race to the bottom, our first steps are in the right direction: ignorance.

Comment from James Johnson, (4/20/2012, 3:00 AM)

Car - this is about more than providing information. It is about government power run rampant in that what they required is above their authority to do. I've checked and read through the Constitution several times and no where in there does it state the federal government was given the power to regulate labor or employees. Possibly by greatly stretching the commerce clause it could have something to say in labor for a company working across state borders. Otherwise it appears to be a state issue as that power was never given over to the federal government. We do believe in upholding the US Constitution don't we?

Comment from Mark Bowen, (4/20/2012, 8:38 AM)

Employers need a double bulletin board so that the right side can post a notice of management rights. Free speech advocates would howl in protest over that one.

Comment from Paul Archambo, (4/20/2012, 12:08 PM)

Car as you can tell from the posts on the page you are dealing with low information fox news government is bad and out of control voters who vote consistently against their own best interest. These right to work for less people have no clue!! This country was built by people who realized that when there is a strong middle class everyone does better even the rich. But we are a me me me culture and to hell with everyone else as long as I get mine!! I am glad I am old and will be dead before the people like the above posters ruin this country. Welcome to the race to the bottom!! Look out Mexico here we come!!

Comment from Mike McCloud, (4/23/2012, 8:20 AM)

I love sharing my 60 - 80 hour a week earnings with the 48%ers (those on the peoples teat). These left wingers can't understand normal thinking. What did happen to our free country?

Comment from Car F., (4/23/2012, 10:19 AM)

Thank you Mr.Archambo, I was starting to feel like I was the only one living outside the illusion we've been sold as freedom. I realize that is not true and that not everyone is in favour of their own demise and working for nothing....and feel grateful for it at the same time...thank you sir.

Comment from Jerry Trevino, (4/23/2012, 5:04 PM)

Car, in my opinion, your way of thinking produces the current state of affairs with cities like Detroit and Pontiac. With out us tax payers, GM and Chrysler would have also gone under. The free market systems works. We still have the greatest country on earth. We are now competing with the rest of the world. US Companies are over regulated and taxed to almost death. We may have to start migrating to other countries to find jobs. Boeing could be making planes in South Carolina, now more then likely, more planes will be built overseas versus US. The Federal Government has no right to interfere with Boeing or any other company for that matter.

Comment from Pieter van Riet, (4/24/2012, 5:39 AM)

I am surprised by the convoluted logic and aggressive tone of some of these comments. I hope these are not the same people we rely on for level headed advice and thoughtful opinion on corrosion matters? In South Africa it had been required for years that employers post a synopsis of the Basic Conditions of Employment Act at the work place, with no adverse effects to our liberty or freedom. Don't really see why there is such vociferous objection to it. It appears most of the writers are employers, and I wonder if the would have the same negative opinion on information sharing if they were mere low level workers, or working for an exploitive employer?

Comment from Car F., (4/24/2012, 10:30 AM)

Mr.Pieter van Riet: for most people in this planet it would be a reasonable and simple thing to do: post a piece of paper advicing people of their rights. The vitriolic and adversarial tone of the replies to this simple act, illustrate the sad mentality that permeates every aspect of life in this country. Anywhere else in the planet this would not be a topic of discussion eliciting incendiary comments, in fact it would probably be the contrary: a positive atittude towards free information of individual rights. Thank you sir for your measured and positive comments.

Comment from Darrell Manley, (4/24/2012, 10:31 AM)

No Pieter, I am just a private citizen working for a good small company and I am sick and tired of the Federal government over taxing and over regulating. We have reached the point where almost half of the workers in the USA do not pay any federal income tax and our corporations pay the highest taxes of any industrialized country. We have lawmakers writing 2,500 page laws that nobody understands and regulators filling in the blanks. That it is why we have courts that look at these monstrosities and determine whether or not they are constitutional. Just because you may like something and feel that it is a good idea does not make it constitutional. Using your example, what would you do if an Act were adopted and it did have an adverse effect on your liberty and freedom? Try to strike it down? Once bad law is put in place it is very difficult to change. Your country's experience with apartheid is a classic example. Someone thought at some point that it made good sense and laws were written and they were enforced by the government. It took years to finally repeal this bad law. So don't begrudge us that want to keep our government on a short leash.

Comment from Jerry Trevino, (4/24/2012, 1:53 PM)

This has nothing to do with solving corrosion issues. The competency of solving corrosion issues is totally mutually exclusive of political differences. This type of discussion is much more important. If we continue on this road, all we will be doing is babysitting versus applying our profession. I totally agree with Darrell's viewpoint. Enough is enough of new regulations. Look at the lightbulb issue, we are now mandated to use mercury laden light bulbs. Why can't we just use whatever lightbulb we deem is good. We do not need the Feds to tell us what kind of light bulb to use, what fat content food we should eat, what type of freon etc, etc. We need more freedom not more constraints, chains, and restrictions. Teenagers now have the right to have an abortion without notifying the father or the parents. Should we post this every home's fridge so our kids know their rights? If I believe in a God and you may not, should we post that every employee has a right to believe in God? Should be post that every employee has the right not to work at this establishment. No more darn posting.

Comment from Paul Archambo, (4/25/2012, 10:46 AM)

All you boys complaining about the government need to move to China. We will keep our clean air and water and our government regulations that keep your employer from making you work for $2.00 a day. The reason your taxes are so high is you keep voting for the idiots that keep cutting the taxes for the rich. The so called job creaters... where are all the jobs? Oh and there is no mandate on light bulbs, thats just what Fox News (a real joke) wants you to believe. Try another source and instead of misinformation you may get the truth. Its a sad day when posting a poster informing you of your rights has so many misinformed people jumping up and down saying... OH MY THE GOVERNMENT IS OUT OF CONTROL!!!

Comment from Pat Wade, (4/25/2012, 11:06 AM)

There was a point in time where workers needed the help and protection of a union. Those days are long gone. Unions have killed us (i.e. I'm paying my foremen and painters double the market rate any time we do government work in order to fulfill prevailing wage requirements). That makes no sense. If would be impossible for our government to be any more wasteful than they are (like the GSO convention in Vegas). I've worked incredibly hard to build my business to what it is. I got here by making sacrifices, investing in my people (they are the lifeblood of my company) and working my butt off. Not by relying on the governement to bail me out or supplement my income. I get painters that turn down work all the time because they'd rather sit home and collect unemployment than work for $20/hr. Unbelievable.

Comment from James Johnson, (4/25/2012, 11:29 AM)

Pieter, worker rights are regularly posted and have been for many years. The new regulations this is all about is in regards to unions and people being forced to join them. The unions are pushing very hard to change law to make it far easier to force unionism on workers. Once a work place is unionized every worker must pay the monthly stipend to the union, whether they want to or not. This new poster law is entirely about forcing changes upon a worker. The real pity is a large portion of the forced dues are then used to fund politicians that further the purposes of unionizing even more unwilling workers, which pay more unwilling dues so more lousy politicians can get elected and line the pockets of the union management themselves. The whole scheme is rotten to the core and the main reason the US is no longer a manufacturing nation. Yes, the government is out of control...drastically so! This law which was overturned is just one of thousands that overstep the bounds set by the Constitution.

Comment from Richard McLaughlin, (4/26/2012, 9:32 AM)

Paul... read this: - I don't think anyone can call CNN a wing of Fox news.

Comment from Jeremy Matney, (12/31/2012, 7:36 PM)

Union Yes

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