National Labor Relations Board Chairman Mark Gaston Pearce has announced that the Board is delaying its new poster requirement indefinitely "pending the resolution of the issues" in various court challenges to the rule adopting the notice posting requirement.
This means that employers do not need to post the employee rights notice, at least for the time being.
On April 17, 2012, the D.C. Circuit Court of Appeals ordered that the Board be enjoined from implementing its notice posting rule, which had been due to go into effect at the end of this month. The injunction is the result of a motion filed by several employer groups in connection with their appeal of a district court decision upholding the portion of the rule that obligates employers to post the employee rights notice. Shortly after the issuance of the injunction, the Board announced that it will not implement the rule pending resolution of the appeal.
Employers will recall that the Board first adopted the notice posting rule in August 2011 but delayed its implementation on two occasions pending legal challenges to the rule. This is now the third time the Board has delayed implementation of the rule. Our initial alert concerning the requirements of the rule can be found here.
Two federal district courts have recently issued conflicting opinions on whether the rule is valid. In March, the D.C. District Court upheld the portion of the rule that required employers to post the employee rights notice but invalidated other portions of the rule that gave the Board certain enforcement powers, such as the ability to declare the mere failure to post the notice to be an unfair labor practice and the ability to toll the statute of limitations for unfair labor practice charges when an employer fails to post the notice.
Several days ago, the South Carolina District Court invalidated the rule in its entirety, holding that the Board did not have the authority under the National Labor Relations Act to require that employers post the notice. The court explained that the Board's function is limited to conducting representation elections and preventing employers and unions from engaging in unfair labor practices. Although the Board has rulemaking power, the court concluded that the notice posting rule was invalid because it was not "necessary" to carry out the provisions of the NLRA and was inconsistent with the Board's traditional function.
The Board has announced that it intends to appeal the portion of the D.C. District Court opinion striking down the enforcement mechanisms contained within the rule as well as the S.C. District Court opinion striking down the rule in its entirety. Employer groups have already appealed the portion of the D.C. District Court opinion upholding the notice posting requirement. In light of the conflicting federal district court opinions and the various appeals and cross appeals, it may be that the issue of whether the Board has the authority to promulgate and enforce the notice posting rule will ultimately be decided by the U.S. Supreme Court.
We will update employers on whether they have any obligation to post the notice as these appeals progress. As always, let us know if you have any questions about how the notice posting rule or any other action by the Board may impact your business.
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