April 18, 2012
As we recently detailed, a South Carolina federal district court held on April 13, 2012 that the National Labor Relations Board (NLRB) does not have statutory authority to force employers to post notices that the NLRB claims are designed to inform employees of their rights under the National Labor Relations Act (the Act). That decision directly conflicts with a recent decision from a separate federal district court in the District of Columbia which found that the NLRB does have authority to promulgate the notice rule.
The conflicting decisions created uncertainty and placed employers in a difficult position. The posting regulations were scheduled to become effective on April 30, 2012, and employers were unsure whether they would be required to post the NLRB notice by that deadline. (See previous articles related to this topic from August 26, 2011 and April 16, 2012 ).
In an order issued on April 17, 2012, the United States Court of Appeals for the District of Columbia (the D.C. Circuit) eliminated that uncertainty (at least temporarily) by enjoining the NLRB from enforcing its proposed posting rule during the pendency of the appeal. The D.C. Circuit has set a briefing schedule for the appeal, with a hearing date in September 2012. Accordingly, the D.C. Circuit likely will not issue a ruling on the appeal until this fall at the earliest, and the injunction will remain in effect until at least that time.
In a press release issued by the NLRB, NLRB Chairman Mark Gaston confirmed that the Board intends to comply with the court’s ruling, stating that “[i]n 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.” However, not to concede the point, Mr. Gaston further stated that “[w]e 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.”
We will, of course, inform you of any further developments as soon as they occur. In the interim, please contact the authors or other members of the McGuireWoods LLP’s Labor & Employment team for further information and guidance.