NLRB Notice Requirement: Postponed Indefinitely

UPDATE

NLRB rule requiring employers to post notices informing employees of certain rights under the National Labor Relations Act (NLRA) again is delayed. 

Yesterday, for the third time, the National Labor Relations Board (NLRB) postponed the implementation of its notice posting rule, this time because of two district court decisions and an appellate court injunction prohibiting enforcement of the rule. This time, the postponement is indefinite. 

Both district courts, the District of Columbia and South Carolina, invalidated the rule’s enforcement mechanism, holding that the NLRB lacks the authority to create a new unfair labor practice beyond those enumerated in the NLRA.  The South Carolina court went further and struck down the rule in its entirety, finding that the NLRB lacks the authority to create any notice posting obligation. When that conflicting ruling was issued, the Court of Appeal for the D.C. Circuit issued a stay of the rule, pending resolution of the NLRB’s appeal. At that point, NLRB Chairman Mark Gaston Pearce announced that the agency will not implement the notice posting rule anywhere in the country until the legal issues are resolved fully.

Thus, no employer needs to post the notice at this time and, depending on the outcome of the appeals, may never have to do so. The D.C. Circuit will hear the appeal on an expedited schedule, and has set oral argument for September 2012. The schedule for the South Carolina appeal has not yet been set. 

You can find a description of the rule in our Aug. 26, 2011 advisory here.