Alerts and Updates

Federal Court Rules NLRB's Union Posting Rule Unlawful

April 16, 2012

Judge David Norton of the U.S. District Court for the District of South Carolina issued a decision on April 13 that throws out the NLRB's proposed notice-posting rule entirely.

See our update on the notice-posting rule: D.C. Circuit Enjoins NLRB's Posting Rule, Pending Appellate Proceedings.

The National Labor Relations Board's (NLRB or "the Board") new requirement that most employers post a formal notice in the workplace advising employees of their union organizing rights, slated to take effect on April 30, 2012, was ruled unlawful by a federal court last Friday afternoon in Chamber of Commerce v. NLRB (D. S.C. April 13, 2012). As we reported in a recent Duane Morris Alert, the NLRB is seeking to require virtually all employers in the United States, regardless of size, to obtain a copy of a formal employee notice drafted by the NLRB and to post it at the workplace and on the intranet and Internet pages used to communicate with their employees. The required notice details the employees' National Labor Relations Act (NLRA) rights, including their rights to union organization and other concerted activity, as well as prohibited employer activity and instructions on how to bring charges against their employers for perceived violations. Early last month, in NAM v. NLRB (D.D.C. March 2, 2012), a D.C. federal court upheld the proposed notice-posting rule (although it struck down certain provisions imposing sanctions on employers for failing to post the required notice). That decision is on appeal in the D.C. Court of Appeals, and we can anticipate hearing further from that federal appeals court before April 30.

Judge David Norton of the U.S. District Court for the District of South Carolina issued a decision on April 13 that throws out the NLRB's proposed rule entirely. He concluded that the Board was not authorized by the NLRA to promulgate the notice-posting rule, and the rule went beyond the authority Congress granted to the Board—thus, it was found unlawful. Judge Norton determined that the NLRB was authorized to promulgate only those regulations that were "necessary" to carry out the provisions of the NLRA; and while the Board's proposed notice might help further the goals of the statute, it was unnecessary for implementing the statute. In assessing whether Congress intended to authorize the Board to issue such a notice-posting rule, he pointed out that the NLRA does not expressly authorize such a rule, in contrast to other federal labor and employment statutes passed by Congress—including the Railway Labor Act (federal law that governs labor relations in the railroad and airline industries)—which expressly authorize notice-posting requirements. Employment statutes requiring posting identified by the court are: Title VII, ADEA, ADA, OSHA and FMLA. Judge Norton also explained that the notice-posting rule was inconsistent with how Congress structured the NLRA and the role of the NLRB. The court analyzed in detail how the NLRB is authorized only to act "reactively," that is, whenever an unfair labor practice charge or union election petition is filed. The proposed notice would require affirmative conduct by employers before any charge or petition was filed.

We expect the NLRB to appeal the court's ruling. We anticipate the Board will announce shortly whether, pending that appeal, it will seek to enforce the rule outside of the jurisdiction of the court, request a stay of Judge Norton's ruling or further postpone the effective date of the proposed rule to allow for the pending cases to be resolved and for the courts to provide clearer direction on the issues. Duane Morris will monitor and report on developments as they unfold in the coming days and weeks.

About the Duane Morris Institute

The latest developments on this and other actions being taken by the NLRB will be analyzed, and attendees' questions discussed, during the Duane Morris Institute webinar "Are You Prepared for the 'Union Spring' of 2012?" to be held on May 9, 2012.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.