April 26, 2012

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NLRB Notice Posting Rule Meets Further Roadblocks

During the last two weeks, the National Labor Relations Board's (NLRB) Notice posting rule has encountered further roadblocks to its implementation. The rule, which requires all employers covered by the National Labor Relations Act (NLRA) to post a Notice informing employees of certain of their rights under the Act, was most recently scheduled to go into effect on April 30, 2012. As a result of the events of the last two weeks, implementation of the rule has again been postponed.

On April 13, the District Court for the District of South Carolina decided that the entire rule was invalid because the NLRB lacked authority to issue the rule. The NLRA grants the NLRB the authority to promulgate rules and regulations as "may be necessary" to carry out the provisions of the NLRA. The Court determined that the rule was not "necessary" to carry out the other provisions of the NLRA. In support of its decision, the Court noted that for more than 75 years of the NLRA's existence neither Congress nor the NLRB had established a requirement that employers post a Notice of certain employee rights under the NLRA. Thus, because the Notice posting rule was not "necessary" to carry out the other provisions of the NLRA, the NLRB did not have the authority to issue the rule, and the rule, in its entirety, was unlawful.

The South Carolina District Court's decision was preceded by a decision of the District Court for the District of Columbia in another lawsuit challenging the validity of the rule. Unlike the South Carolina District Court, the D.C. District Court found that the NLRB did have authority to require employers to post the Notice. The D.C. Court, however, struck down the rule's primary enforcement mechanisms, namely that failure to post the Notice i) was an unfair labor practice, and ii) tolled the statute of limitations for filing unfair labor practice charges.

The decision of the D.C. District Court was appealed to the Court of Appeals for the District of Columbia. Citing the conflicting decision of the South Carolina District Court, on April 17 the D.C. Court of Appeals granted an emergency motion for an injunction barring the implementation of the Notice posting rule on April 30.

Because the D.C. Court of Appeals only has jurisdiction over the District of Columbia, its decision raised questions about the status of the rule outside of the District of Columbia. Following the D.C. appellate decision, the NLRB cleared up that uncertainty. Last week the NLRB issued a news release announcing that, in the interest of uniformity, the rule would not be implemented anywhere pending a decision on the merits of the case by the District of Columbia Court of Appeals.
What is the future of the rule? The NLRB has announced that it continues to believe that it has authority to issue and enforce the Notice posting rule, it disagrees with the South Carolina District Court's decision, and it will appeal that decision. The NLRB also announced that it will appeal the portion of the D.C. District Court's decision that struck down the rule's enforcement mechanisms. The D.C. Court of Appeals has set oral argument in the case for September 2012. The issue regarding the rule's validity may ultimately be resolved by the U.S. Supreme Court. The bottom line for employers at this time is that they do not need to post the NLRB Notice on April 30, and will not have to do so until September of this year at the very earliest.
For more information, please contact Nate Niemuth or any other member of Ryley Carlock & Applewhite's Labor and Employment Practice Group.