NLRB Posting Rule Enjoined Indefinitely

Citing the court decision obtained last Friday by the U.S. and South Carolina Chambers of Commerce in the District of South Carolina, the D.C. Circuit Court of Appeals has enjoined the National Labor Relations Board (NLRB) from implementing the notice posting rule (which would have required virtually every private employer in the country to post a notice regarding the rights of employees to organize and join a union) until the D.C. Circuit has fully considered the issue on appeal. At this point, employers are not required to post such notice on April 30, as previously scheduled.

On April 13, 2012, a federal district court in South Carolina invalidated the NLRB’s notice posting rule, which would have required most employers to post a notice regarding the rights of employees to organize and join a union. The court held that the NLRB "exceeded its authority in violation of the Administrative Procedures Act."  Chamber of Commerce of the United States v. NLRB, No. 2:11-cv-02516-DCN, U.S. District Court for the District of South Carolina (April 13, 2012).

The decision both vindicates the rights of employers and constrains the power of the NLRB. In striking down the rule, the court preserved the role of the NLRB as a quasi-judicial arbiter of employee rights, rather than an advocate for unions and unionization.

In its opinion, the lower court determined that Congress had limited its grant of authority to the NLRB. The court stressed that the National Labor Relations Act (NLRA) does not expressly authorize the NLRB to promulgate a posting rule, in light of multiple congressional amendments to the NLRB and in contrast to cases in which Congress has expressly authorized other agencies to require the posting of employee notices. Accordingly, the court held that the Board lacked the authority to promulgate the rule under the NLRA's plain language, structure, and legislative history.

Should you have any questions regarding the information contained in this article, please do not hesitate to contact VP of Legislative Affairs, Kirk Turner at (918) 587-0101, or by email at eat0@eau0eav0eaw0.