On April 17, 2012, the US Court of Appeals for the DC Circuit enjoined the National Labor Relations Board (NLRB) from requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA) by April 30, 2012. The injunction in National Association of Manufacturers v. NLRB maintains the status quo while the court evaluates an appeal about the validity of the NLRB's poster rule. The court's injunction order followed an April 13, 2012 decision in Chamber of Commerce of the United States v. NLRB, where the federal District Court for the District of South Carolina granted summary judgment in favor of the plaintiffs, holding that the NLRB lacks authority under the Administrative Procedure Act to issue the rule.
Employers are no longer required to post a notice of employees' rights under Section 7 of the NLRA by April 30, 2012. The US Court of Appeals for the DC Circuit granted an emergency motion enjoining the NLRB from enforcing its notice posting rule pending the appeal of a DC federal district court opinion that found the rule partially valid. The DC Circuit's order follows a South Carolina federal district court holding that the NLRB lacks authority under the Administrative Procedure Act to require employers to post a notice about NLRA rights and to impose penalties for not posting.
Close speedreadIn Chamber of Commerce of the United States v. NLRB, the plaintiffs, the US Chamber of Commerce and the South Carolina Chamber of Commerce, challenged the validity of a rule issued by the NLRB in August 2011, which requires private employers to post a notice explaining employees' rights under the NLRA (No. 2:11-cv-02516 (D.S.C. Apr. 13, 2012)).
On April 13, 2012, the district court held that the Administrative Procedure Act does not give the NLRB authority to issue the notice-posting rule because:
Section 6 of the NLRA does not give the NLRB authority to do so.
The NLRA unlike other federal laws governing the workplace, does not require that employers post a notice of employees' rights under the law, which means that:
the notice-posting rule is not necessary to carry out the NLRB's essential functions;
Congress did not intend to impose a notice-posting requirement on employers under the NLRA;
Congress did not explicitly or implicitly give the NLRB authority to promulgate this rule; and
there is no "gap" in the NLRA that allows the NLRB to impose this rule.
The district court's decision conflicts in part with National Association of Manufacturers v. NLRB, where the US District Court for the District of Columbia held that the NLRB:
Has the authority to require employers to post the notice.
Cannot classify an employer's failure to post the notice as an unfair labor practice.
On April 17, 2012, the DC Circuit enjoined the NLRB from requiring employers to comply with its poster rule in National Association of Manufacturers. The injunction maintains the status quo while the court considers an appeal from the DC district court's decision in that case. The court's injunction order relies on, among other things the Chamber of Commerce of the United States opinion.
Employers should understand that they:
Are not required to post the NLRB's notice of rights poster by April 30, 2012.
May never be required to post the NLRB's notice of rights poster, if the DC Circuit invalidates what remains of the NLRB's rule.