|NLRB Posting Requirement Will Not Take Effect on April 30, as Previously Scheduled|
By: Judith E. Kramer
The National Labor Relations Board's regulation requiring the posting of notices of employees' rights under the National Labor Relations Act, previously scheduled to take effect on April 30, 2012, will not go into effect that day, as a result of a series of events.
On Friday, April 13, a federal district court in South Carolina invalidated the NLRB's posting requirement, ruling that the Board had exceeded its statutory authority in issuing the posting regulation. According to the court, Congress intended the NLRB to be a quasi-judicial body that has two main functions: to conduct representation elections and certify the results; and to prevent employers and unions from engaging in unfair labor practices. The court ruled that the Board was meant to be a reactive agency, which acts only in cases brought before it. (Chamber of Commerce v. NLRB). It is expected that the Board will appeal the adverse decision to the Court of Appeals for the Fourth Circuit.
The decision in the Chamber of Commerce case conflicts with a ruling of the District Court for the District of Columbia, which, on March 2, 2012, had largely upheld the Board's regulation. (National Association of Manufacturers v. NLRB). The National Association of Manufacturers case is currently on appeal to the Court of Appeals for the D.C. Circuit, and that court, on April 17, 2012, issued an injunction pending appeal. The court of appeals also ordered expedited briefing in the case, and will hear oral argument in September 2012. That left open the question of whether the Board would implement the rule outside of South Carolina and the District of Columbia.
The Board has answered that question in the negative. Shortly after the issuance of the injunction, the Board's Chair, Mark Gaston Pearce, issued a press release, stating, "In view of the D.C. Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court." He stated, however, "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."