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April 19, 2012

Courts’ Disagreement Means No NLRA Poster… For Now

Could it be that it’s already been over a year since the National Labor Relations Board issued its proposed rule to require employers to add another poster to their walls?  The NLRB first proposed the rule in December 2010, and it’s been a long and winding road since.  Last fall, we were on the verge of the requirement to post.  We distributed a on the subject last September, after the final rule was published on August 30, 2011.  After multiple extensions, the rule is now set to take effect on April 30, 2012.  Thanks to an ongoing court battle, it looks like employers will be left to wonder when (or if) they need to clear a space for a new poster.

Recently, the U.S. and South Carolina Chambers of Commerce filed a lawsuit that sought review of the rule.  U.S. District Court Judge David Norton agreed with the Chambers that the NLRB exceeded its authority and violated the Administrative Procedure Act.

There are three laws that comprise the National Labor Relations Act: the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act.  Unlike other statutes – such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Family and Medical Leave Act – the laws that comprise the NLRA do not contain any statutory authority requiring that employers post notices of rights and remedies under the statutes.

The Court further concluded that:

  • The rule, while useful, is not necessary to carry out the provisions in the NLRA.
  • The NLRB is an agency that reacts to charges filed by others.  The rule “proactively dictates employer conduct prior to the filing of any petition or charge.”
  • There was no “statutory gap” for the NLRB to fill.

The Court’s decision created a split from a previous decision made by the D.C. District Court, which upheld the posting requirement in its decision.  Earlier this week, the U.S. Circuit Court granted an injunction that will delay the posting requirement.  Meanwhile, the D.C. Circuit Court has expedited its review of the D.C. District Court’s ruling, and will hear oral arguments in September.

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