Appellate Court Issues Injunction Against NLRB Poster Requirement

17 April 2012 Labor & Employment Law Perspectives Blog
Author(s): Carrie Hoffman

On March 5, 2012, we blogged about the U.S. District Court for the District of Columbia ruling that the NLRB properly promulgated a requirement that employers post a notice informing emploeyes of their rights under the NLRA.  Under the rule, employers were required to post the notice by April 30, 2012.

Today, the U.S. Court of Appeals for the District of Columbia Appeals issued an injunction blocking the rule from taking effect on April 30, 2012.  The Court of Appeals has established an expedited briefing schedule for the case.  Oral argument is set for September 2012.  The issue before the Court of Appeals is whether the NLRB lacked authority to implement the rule.

This injunction was issued only four days after the U.S. District Court for the District of South Carolina struck down the NLRB rule requiring employers to post the notice.  Chamber of Commerce of the United States and South Carolina Chamber of Commerce v. NRLB, et. al.  The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce sought review of the final rule promulgated by the NRLB requiring employers to post notice to employees of their rights under the NLRA.  The Chambers of Commerce and the NLRB filed cross motions for summary judgment.  The Court granted the summary judgment motion of the Chambers of Commerce finding that the notice requirement exceeds the NLRB’s authority.

Specifically, the South Carolina district court pointed out that the NLRB had not, in 75 years, ever previously required a notice to be posted.  The Court noted that the poster requirement “proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the Board’s reactive role under the Act.”  Opinion at page 20.  The Court further analyzed the statutory text and legislative history and could find nothing that provided any authority to the NLRB to require the notice to be posted.  The Court compared the NLRA to other employment statutes (like Title VII) which affirmatively require notices to be posted.  Noting that the NLRA contained no such provisions, the Court found that the notice rule exceeded the NLRB’s authority.

For now, employers are not required to post the NLRB poster.

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