On Friday, April 13, 2012, Judge David Norton of the U.S. District Court of South Carolina ruled that the NLRB (“the Board”) lacked the authority to promulgate a rule requiring private sector employers to post an Employee Rights Notice intended to inform employees of their rights under the National Labor Relations Act (NLRA). U.S. Chamber of Commerce et al. v. NLRB, Case No. 11-cv-02516 (D.S.C. April 13, 2012).
Subsequently, the District of Columbia Circuit Court of Appeals issued an injunction that temporarily prohibits the Board from enforcing the posting requirment.
This means that for now, the notice does not need to be posted by April 30.
As we previously reported, another federal district court reached a contrary result, holding that the Board could require the posting but lacked the authority to impose the penalty aspects of the Board’s rule. Nat’l. Assn. of Manufacturers v. NLRB, Case No. 11-1629 (D.D.C. Mar. 2, 2012). The DC Circuit pointed to this case and barred the Board from enforcing the posting rule while the appeal from that decision is pending.
In the South Carolina case, Judge Norton sided with the Chamber of Commerce, ruling that the Board lacked the authority under the Administrative Procedure Act to promulgate a notice requirement. The NLRB argued that the posting requirement furthered their statutory mission of promoting collective bargaining and safeguarding employee rights under the Act. They claimed that since Congress failed to specifically include notice posting in its grant of authority to the Board, the agency should be allowed to “fill the gap” left by Congress. Judge Norton disagreed, finding that agencies may only promulgate rules where doing so is “necessary to carry out” a provision of the grant of authority from Congress. Requiring employers to post a notice of employee rights is not “necessary” to accomplish the Board’s mission under the Act.
The Board has repeatedly contended in court and in statements to the general public that they should be allowed to require the notices because other federal agencies charged with enforcing other workplace laws require notices to be posted. Judge Norton observed, however, several other workplace laws, such as Title VII and the Fair Labor Standards Act, have a specific grant of authority to require such posting. Judge Norton felt that because the NLRA does not, the Board’s argument was unpersuasive.
This is just the latest in the back and forth activity relating to the NLRB’s notice-posting rule. Until the DC Court appeal is resolved (or until some other development emerges), employers need not post the notice and may safely keep that space on their company bulletin boards empty.