The saga of whether or not private employers must display a NLRB posting requiring private employers to inform their employees of their right to unionize continues. The date to display -- and then postpone -- the posting has been swatted around so frequently, employers may feel like they are at a tennis match.  

Just weeks after a federal district court in the District of Columbia held that the NLRB had the authority to require employers to display the posting, a federal district court in South Carolina held that the rule violated the National Labor Relations Act (“NLRA”) and was unlawful under the Administrative Procedure Act (APA), 5 U.S.C. § 706. The APA subjects final agency action to judicial review to determine whether it is both supported by the administrative record and consistent with the APA. In that decision, U.S. District Judge David C. Norton found that Congress did not mandate notice-posting obligations on employers and did not give the NLRB authority to do so either. The win was a victory for the U.S. Chamber of Commerce which commenced the action.  

As a result of the South Carolina decision, on April 17, 2012, a District of Columbia appellate court enjoined the lower court’s decision because the “uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.” The issue may ultimately be decided by the U.S. Supreme Court. Among the issues to be decided is whether the NLRB has the authority to require employers to post the notice. The decisions can be found at: Nat’l Ass’n of Mfrs, v. NLRB, No. 11-cv-1629 (D.D.C. Mar. 2, 2012); Chamber of Commerce v. NLRB, No. 11-cv-2516 (D.S.C. Apr. 13, 2012); Nat’l Ass’n of Mfrs, et al. v. NLRB et al., No. 12-5068 (D.C. Cir. Apr. 17, 2012).  

Citing a “strong interest in the uniform implementation and administration of agency rules,” the NLRB has announced that regional offices will not implement the rule until the issue is resolved by the courts. The grant of an injunction by the D.C. Court of Appeals already has been appealed and oral argument is scheduled to take place in September 2012.  

In light of the injunction, employers should not display the posting until the issue is resolved. Initially, employers were told they were required to display the 11 by 17 posting by November 14, 2011. This date was extended to January 31, 2012, and then again to April 30, 2012, as a result of actions commenced by several business groups.  

We will continue to keep you posted on further developments. Our prior alerts can be accessed by clicking on the below: