A hearing before a panel of federal appeals court judges is the latest development on the issue of whether the National Labor Relations Board has authority to require all employers covered by the National Labor Relations Act to post a notice informing employees of their right to organize, providing contact information for the NLRB, and describing basic enforcement procedures.  The D.C. Circuit panel on September 11, 2012, heard business groups argue that the NLRB exceeded its authority by issuing a final rule on “Notification of Employee Rights under the National Labor Relations Act” on August 25, 2011. National Association of Manufacturers v. NLRB, No. 12-5068.

This case was appealed to the D.C. Circuit after federal district court Judge Amy Berman Jackson ruled in March that the Board had the authority to require the notice posting.  Judge Jackson held, however, that the NLRB exceeded its authority by promulgating provisions that permit it to deem a failure to post an unfair labor practice, and to toll the statute of limitations for charges brought by employees against employers who failed to post the notice.  (For more information, please see Judge Finds NLRB Workers’ Rights Posting Requirement Lawful, But Strikes ULP and Tolling Provisions.)

Another case challenging the rule is pending in the U.S. Court of Appeals for the Fourth Circuit (Richmond).  In that case, Chief Judge David C. Norton of the federal District Court of South Carolina found that in promulgating its final rule, the NLRB exceeded its authority, in violation of the Administrative Procedure Act. (For more information, please see NLRB Workers’ Rights Posting Requirement is Unlawful, Federal Judge in SC Holds.)  The opening brief is due to the Fourth Circuit on September 28, 2012.

While these appeals are pending, the Board has indicated it will not implement the rule.  However, federal contractors still are required to post a similar notice pursuant to a separate Presidential Executive Order, which remains in effect. (For more information, please see, DOL Final Regulations on Contractors' Obligation to Notify Employees of Organizing Rights (EO 13496), or Special Report: DOL Final Regulations on Contractors’ Obligation to Notify Employees of Organizing Rights (EO 13496).)