On April 17, 2012, the National Labor Relations Board
("NLRB") announced it will postpone the effective date of
its rule requiring employers to post a notice advising employees of
their rights under the National Labor Relations Act
("Act") pending resolution of two court cases.
NLRB Chairman Mark Gaston Pearce issued the announcement in the
wake of both the April 17, 2012 emergency injunction halting the
NLRB from implementing the rule until the case pending before the
U.S. Court of Appeals for the District of Columbia is resolved, and
the April 13, 2012 decision by the U.S. District Court for the
District of South Carolina that invalidated the rule. The South
Carolina District Court specifically found that "such a rule
is inconsistent with the Board's reactive role under the
Act" and that the NLRB does not have the authority to issue
the notice-posting rule.
The U.S. District Court for the District of Columbia previously
upheld the rule, but invalidated its primary enforcement mechanisms
and struck down a request for an injunction. Employer groups
appealed and the DC Circuit Court of Appeals granted the injunction
in light of the DC District Court's ruling that invalidated the
primary enforcement mechanisms for violating the posting
requirement, the NLRB's indication that it may cross-appeal
that portion of the decision and the need to consider the merits of
the challenges to the rule before it went into effect.
These decisions are a victory for employers. However, the fight
over whether the NLRB can require employers to post notices
advising employees of their rights under the Act is not over.
Chairman Pearce announced, "We continue to believe that
requiring employers to post this notice is well within the
Board's authority and that it provides a genuine service to
employees who may not otherwise know their rights under our
law." We expect the NLRB to appeal the South Carolina District
Court decision to the Fourth Circuit. If the decisions of the DC
Circuit and the Fourth Circuit conflict, it is likely that the
matter will be appealed to the Supreme Court. It is important to
note that this deferral does not affect the Department of
Labor's current requirement that federal contractors and
subcontractors post a similar notice.
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