Appellate Court Issues Injunction Against NLRB Poster Requirement


On March 8, 2012, we sent a client alert notifying you that the U.S. District Court for the District of Columbia struck down the penalty provisions of the National Labor Relations Board rule requiring employers to post a notice to employees about their rights under the National Labor Relations Act but upheld the right of the NLRB to require employers to post the notice. That alert may be accessed here. Under the rules, employers were required to post the notice by April 30, 2012.

Plaintiffs in that case appealed the decision to the U.S. Court of Appeals for the District of Columbia. On April 17, 2012, the Court of Appeals issued an injunction blocking the rule from taking effect on April 30, 2012. The Court of Appeals has established an expedited briefing schedule for the case. Oral argument is set for Sept. 2012. The issue before the Court of Appeals is whether the NLRB lacked authority to implement the rule.

The injunction was issued only four days after the U.S. District Court for the District of South Carolina struck down the NLRB rule requiring employers to post the notice. Chamber of Commerce of the United States and South Carolina Chamber of Commerce v. NRLB, et. al. The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce sought review of the final rule promulgated by the NLRB requiring employers to post notice to employees of their rights under the NLRA. The Chambers of Commerce and the NLRB filed cross motions for summary judgment. The Court granted the summary judgment motion of the Chambers of Commerce finding that the notice requirement exceeds the NLRB's authority.

Specifically, the South Carolina district court pointed out that the NLRB had not, in 75 years, ever previously required a notice to be posted. The court noted that the poster requirement "proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the Board's reactive role under the Act." Id. at p. 20. The court further analyzed the statutory text and legislative history and could find nothing that provided any authority to the NLRB to require the notice to be posted. The court compared the NLRA to other employment statutes (like Title VII) which affirmatively require notices to be posted. Noting that the NLRA contained no such provisions, the Court found that the notice rule exceeded the NLRB's authority.

For now, employers are not required to post the NLRB poster.

The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.

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