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NAW Legal Advisory

Federal Appeals Court Delays Enforcement of NLRB's Notice Posting Rule; South Carolina District Court Declares NLRB Rule Unlawful

Updated April 2012

On April 17, 2012, the U.S. Court of Appeals for the District of Columbia issued an injunction to delay enforcement of the National Labor Relations Board’s notice posting rule, pending the outcome of the appeal of a lower court ruling. The legal issue under review is whether the NLRB has sufficient rulemaking authority under the National Labor Relations Act (NLRA) to require most private sector employers (whether or not they have union workers) to post workplace notices that inform employees of their rights to join or organize a union. The April 30, 2012 deadline for employers to post these workplace notices has now been postponed by the appeals court until the court hears the appeal and issues its decision, which will be later this year at the earliest. (National Association of Manufacturers v. NLRB, Docket No. 12-5068).

Several business organizations, including the Coalition for a Democratic Workplace (CDW), which NAW helps manage, challenged the NLRB rule and its enforcement provisions in the D.C. federal district court. On March 3, 2012, the district court ruled that the NLRB had statutory authority under the NLRA to require employers to post the prescribed notice in the workplace. However, the district court did strike down several enforcement sanctions in the NLRB rule. (For additional information on the district court’s ruling, see NAW’s Legal Advisory at: www.naw.org/govrelations/advisory.php?articleid=657

On March 5, 2012, CDW and other business organizations appealed this ruling to the D.C. Court of Appeals and sought an emergency court order to delay the April 30, 2012 enforcement date until the appeal is decided. In granting the emergency order, the appeals court cited a South Carolina federal district court decision (discussed below) that declared the notice posting rule is unlawful because Congress did not give the NLRB the authority to impose such a mandate on private employers. The court also established an expedited briefing schedule for the parties and set the case for oral argument in September 2012.


South Carolina District Court Voids NLRB Notice Posting Rule

In a similar case challenging the NLRB’s notice posting rule, on April 13, 2012 a Charleston, South Carolina federal district court judge ruled the NLRB cannot force private employers to post workplace notices informing workers about their rights to join or form a union. (Chamber of Commerce of the United States v. NLRB). In a well-reasoned thirty-one page opinion, Chief Judge David C. Norton said imposing this mandate on six million businesses exceeds the federal agency’s authority. “There is not a single trace of statutory text [in the National Labor Relations Act] that indicates Congress intended for the Board to proactively regulate employers in this manner,” according to the court’s decision.

To the contrary, since enactment in 1934 the NLRA has not included a notice posting requirement while at least 9 other federal labor statutes have expressly included such a requirement. According to the court, “Congress clearly knows how to include a notice posting requirement in a federal labor statute when it so desires.” The NLRA’s “silence” on this issue means Congress did not intend to give the NLRB the power to force employers to post such notices, nor for past seventy-five years has the agency thought it had this regulatory muscle to flex.

In granting the plaintiff’s motion for summary judgment, Judge Norton ruled the NLRB’s notice posting rule, in its entirety, was unlawful and unenforceable. The court’s decision may be viewed at: www.chamberlitigation.com/sites/default/files/cases/files/2011/Chamber%20v.%20NLRB%20(Posting%20Rule)%20(Opinion).pdf


Conclusion

The delay in enforcement of the NLRB notice posting mandate is a relief to millions of employers faced with deciding whether or not to post the notice, given the conflicting federal district court decisions in the District of Columbia and South Carolina. The D.C. Court of Appeals’ injunction eliminates that uncertainty—while the appeal is pending, the NLRB rule is not enforceable and no notice posting is required.