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Federal Courts Diverge on NLRB's Statutory Authority To Require Employers To Post NLRA Rights Notice: So Where Do Employers Go From Here?

April 19, 2012

Two recent rulings from separate federal district courts have called into question the authority of the National Labor Relations Board (“NLRB”) to impose a notice posting requirement on employers. Moreover, a last-minute order from the D.C. Circuit Court of Appeals has now enjoined the NLRB from implementing this rule on April 30, 2012, as was previously scheduled. As it stands now, until the appeals are resolved, employers are not obligated to comply with the NLRB’s notice posting requirement.

Over the last six months, Wolff & Samson (the “firm”) has issued several Employment Law Alerts pertaining to the recently promulgated NLRB rule (the “Rule”) requiring employers to post notice in the workplace of an employee’s rights under the National Labor Relations Act (“NLRA”). The firm first discussed the Rule in great detail in the September 2011 Employment Law Alert. The Rule was originally slated to go into effect on November 14, 2011. However, this date was twice delayed pending the resolution of several lawsuits that challenged the NLRB’s authority to impose this new posting requirement. As discussed in the firm’s January 2012 Employment Law Alert, the most recent postponement set April 30, 2012 as the new effective date.

On March 2, 2012, the D.C. District Court issued its opinion in one of the court challenges to the new Rule. In National Association of Manufacturers v. NLRB, the D.C. District Court held that, while the NLRB had the statutory authority to promulgate the majority of the Rule’s provisions, certain provisions of the Rule were invalid and violated the NLRA. The D.C. District Court struck down Rule provisions that (a) deemed a failure to post the notice to be an unfair labor practice, and (b) tolled the statute of limitations in unfair labor practice actions against employers who failed to post the required notice. The D.C. District Court decision largely left the notice posting requirement intact. In fact, in a later ruling, the D.C. District Court specifically refused to block enforcement of the Rule pending appeal and determined that the April 30th compliance date remained in effect.

On Friday, April 13th, 2012, another federal district court held otherwise. In South Carolina Chamber of Commerce v. NLRB, a South Carolina District Court diverged from the D.C. District Court decisions, and held that the NLRB had, in fact, exceeded its statutory authority in promulgating the notice posting Rule. The South Carolina federal court invalidated the Rule, finding that the NLRB had no authority to require employers to comply by the April 30th deadline.

With the compliance date looming, the split among the circuits posed an uncertain course of action for employers nationwide. Thus, on April 17th, the D.C. Circuit Court of Appeals, in response to an emergency application for an injunction pending appeal filed by the plaintiffs in the D.C. lawsuit, enjoined the NLRB from implementing the Rule while the courts make a final determination on the NLRB’s authority to promulgate this notice posting Rule.

For the present time, employers are not required to post the notice and it will likely be some time before the legal issues surrounding the Rule are resolved. Wolff & Samson will continue to provide updates as to the implementation of this Rule as new information becomes available.

For more information, please contact:

Catherine P. Wells, Member of the Firm
(973) 530-2051 | cwells@wolffsamson.com

Margaret O’Rourke Wood, Member of the Firm
(973) 530-2063 | mwood@wolffsamson.com

Denise J. Pipersburgh, Associate
(973) 530-2090 | dpipersburgh@wolffsamson.com