In the latest development of the ongoing drama surrounding the National Labor Relations Board’s mandate that all employers covered by the National Labor Relations Act must post a notice of employee rights under the law, the U.S. Court of Appeals for the District of Columbia Circuit has issued an order staying implementation of the posting requirement, which had been set to take effect on April 30, 2012.  This article examines the controversy surrounding the posting requirement and the impact of the D.C. Circuit’s decision.

As regular readers of this newsletter are aware, on August 30, 2011 the National Labor Relations Board (“NLRB”) took the unprecedented step of issuing a regulation requiring that all employers subject to the National Labor Relations Act post a notice summarizing the rights of employees under the statute.  The notice consists of a summary of the rights established by the NLRA, including the right of employees to form a union and engage in other collective activities to seek improved terms of employment, and also describes certain employer conduct which is unlawful under the NLRA.  The notice explicitly encourages employees to contact the NLRB if they believe a violation of the law has occurred.  

When the NLRB first announced the posting requirement, the deadline for employers to post the notice was set for November 14, 2011.  The NLRB’s action immediately became the subject of multiple court challenges, however, and the Board therefore pushed the effective date back to January 31, 2012.  The Board later delayed the implementation date a second time, to April 30, 2012.  

The U.S. District Court for the District of Columbia, considering a challenge to the posting requirement filed by a coalition led by the National Association of Manufacturers, issued a ruling on March 2nd upholding the NLRB’s authority to require employers to post the notice.  Yet the court found that a related portion of the rule -- declaring that the failure to post the notice would itself be considered an unfair labor practice -- exceeded the NLRB’s authority.  

Just over a month later, the U.S. District Court for South Carolina issued its own decision on a parallel challenge to the posting requirement by a coalition including the U.S. Chamber of Commerce.  That court broke from the D. C. District Court by finding the posting requirement itself to be beyond the NLRB’s statutory authority.   

While the South Carolina case was still pending, the groups leading the challenge to the law in the District of Columbia sought an emergency injunction from the U.S. Court of Appeals for the D.C. Circuit to stay the notice posting requirement pending resolution of an appeal of the District Court’s decision.  On April 17, the Court of Appeals granted an injunction to keep the notice posting requirement from taking effect.  

In a subsequent press release, the NLRB acknowledged that “In view of the DC 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.”  It is clear, however, that the NLRB does not intend to abandon the notice posting issue in the wake of the adverse rulings, with NLRB Chairman Mark Gaston Pearce quoted in the release as stating that, “We 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.”  

Takeaway for employers: The legal wrangling concerning the NLRB notice posting requirement appears to be far from finished.  The D.C. Circuit’s decision, however, ensures that employers do not need to post the notice by the previously announced April 30, 2012 deadline, and can instead wait to see how the challenges to the posting requirement are dealt with by the courts.  Future issues of this newsletter will continue to track these cases.