In Victory for Employers, Court Strikes Down NLRB Poster Rule

Just when you thought it was safe to put up the poster… On Friday, April 13, 2012, the US District Court for South Carolina struck down the National Labor Relations Board’s notice posting rule.

The ruling will likely lead to another postponement of the April 30 deadline for displaying the National Labor Relations Act employee rights poster as mandated by the NLRB.

For your reference, here’s a quick look at the ruling and what it means for employers. [We will continue to update this list as additional commentary and analysis comes in.]

Handing Employers A Significant Victory, Federal District Court Strikes Down NLRB Rights Poster Requirement (Proskauer)

“One of the principal arguments against the NLRB’s promulgation of this particular rule is that it is not authorized by the Act, as similar notices are authorized in the other federal employment legislation. Section 6 of the NLRA grants authority to the Board to promulgate rules that are ‘necessary’ in carrying out its mission. Judge David Norton noted that the Board’s rulemaking authority in Section 6 of the Act is ‘terra incognita’ and that courts have ‘rarely explored the parameters of Section 6, the reason being the Board has rarely exercised its rulemaking authority.’” Read on>>

South Carolina Federal District Court Overturns NLRB Notice Posting Rule; Creates Split Among Federal District Courts and Questions for Employers (Franczek Radelet P.C.)

“The court acknowledged that the NLRB had articulated a satisfactory explanation for its promulgation of the rule, and even that it had presented evidence that the rule may have aided or furthered the NLRA’s aspirational goals. The court found, however, that none of this evidence demonstrated that the rule was “necessary” as the NLRA requires.” Read on>>

South Carolina Court Strikes Down NLRB Notice-Posting Rule (Morgan Lewis)

“… Judge Norton held that, while the Board has the power to promulgate rules necessary to its function of deciding unfair labor practice charges and representation issues, it cannot create rules that ‘place . . . affirmative obligation[s] on employers prior to a charge or petition first being filed.’ Judge Norton ruled, therefore, that the Rule could not survive step one of the Chevron analysis and that the Board had exceeded its authority under the Administrative Procedures Act by promulgating the Rule.” Read on>>

Federal Court Rules NLRB’s Union Posting Rule Unlawful (Duane Morris LLP)

“In assessing whether Congress intended to authorize the Board to issue such a notice-posting rule, [Judge Norton] 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.” Read on>>

South Carolina Federal Court Strikes Down NLRB Notice Posting Rule (Akerman Senterfitt)

“The South Carolina District Court has not yet issued an injunction or other formal relief to Plaintiffs. Further, it is expected that the NLRB will seek to stay Judge Norton’s order pending appeal… Given judicial developments in this area, the NLRB may postpone the effective date of the rule again, or there may be some further judicial decision in advance of April 30, 2012. Employers are advised not to display the NLRA notice rights poster prior to April 30, 2012 and to consult with counsel to determine the current status of the rule as of the current enforcement date.” Read on>>

So Much for the Mandatory NLRB Posters? Not Quite (Pullman & Comley, LLC)

“In Connecticut, employers may want to err on the side of caution and put up the posters by April 30, 2012 in the absence of any other court rulings. As The Employer Handbook blog said this morning, ‘if you don’t give employees a reason to unionize, a 11″ x 17″ NLRB poster won’t mean squat.’” Read on>>

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