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NLRB Poster Rule Struck Down

NCA Alert

Published Wednesday, May 8, 2013
by Brad D. Steele

As you know, NCA and our partners on the Coalition for a Democratic Workplace (CDW) filed a federal lawsuit challenging the National Labor Relations Board’s (NLRB) right to implement its “Notification of Employee Rights Rule” (the Poster Rule). This rule, first promulgated in February of 2011, would have required all private clubs to display a new poster describing an employee’s right to form a union and describing what constitutes unfair labor practices by management during a union organizing campaign.

In 2012, the U.S. District Court for the District of Columbia ruled against us in our case. However, implementation of the rule was stopped while we appealed the matter to the U.S. Court of Appeals for the D.C. Circuit. Yesterday, the Court of Appeals handed down its decision.

In a major victory for private clubs, the Court of Appeals ruled the NLRB had violated the National Labor Relations Act with the requirements found in the Poster Rule. As such, the NLRB’s “Notification of Employee Rights Rule” was struck down.

Of course, this is but one ruling from one Court of Appeals and the NLRB has the right to appeal this decision to the U.S. Supreme Court. However, for all practical purposes, this ruling removes the Poster Rule as a concern for private clubs.

You may recall that the U.S. Court of Appeals for the D.C. Circuit is the same court that ruled the President’s recess appointment of three members to the NLRB was unconstitutional. That ruling has called into question whether the NLRB has any right to function as it is currently constituted.

In addition to the good news we received from the D.C. Circuit Court, we are also anticipating good news from another lawsuit dealing with the Poster Rule. On April 13, 2012, a U.S. District Court in South Carolina ruled the NLRB did not have the legal right to create this rule. The NLRB appealed that decision and a resolution from the U.S. Court of Appeals for the Fourth Circuit should be coming shortly.   

It is our expectation that the Fourth Circuit Court will rule as the D.C. Circuit Court did. When that happens, the NLRB will have two Courts of Appeals ruling against it and the Poster Rule will likely then be removed completely from the books. 

As always, NCA will keep you informed if the NLRB decides to appeal the D.C. Circuit’s ruling or if there are any other updates the Poster Rule. Until then, we should all be pleased that this rule has been stopped.

If you have any questions regarding this matter, please feel free to contact NCA’s Vice President of Government Relations and General Counsel, Brad D. Steele, at steele@nationalclub.org.

Thank you for being a part of NCA!

 

 

 

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