LABOR LAW UPDATE

The effective date for the National Labor Relations Board’s notice posting rule has been postponed again. Last time it was postponed by the Board itself and this time it is being postponed by the U.S. Court of Appeals for the District of Columbia (D.C. Circuit). Earlier today the Court issued an order granting an emergency motion enjoining the Board from enforcing its rule, which would have required most private employers in the country to post a notice informing employees of their rights under the National Labor Relations Act on April 30. In light of the Court’s order, NLRB Chairman Mark Gaston Pearce issued a press release this afternoon announcing that the Board’s Regional Offices will not implement the rule pending resolution of the issues before the Court.

The Court’s injunction follows on the heels of a South Carolina federal court’s finding that the Board lacked the authority to promulgate the notice posting rule. This decision created a split in the federal district courts, since last month the U.S. District Court for the District of Columbia upheld the Board’s authority to promulgate the rule (but struck down the rule’s enforcement provisions as we discussed in our previous Bullard Alert on this topic. The parties in the D.C. case immediately filed an appeal with the D.C. Circuit asking it to reverse the district court’s finding that the Board had authority to promulgate the rule, and to enjoin enforcement of the Board’s rule while the appeal was pending. The Court originally denied that motion, but reversed itself today for the following reasons:

“We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits. We note also that the district court’s severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement. The Board has indicated that it may cross-appeal that aspect of the district court’s decision. The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.”

The appeal is to be expedited: briefs are to be submitted in May and June and oral argument scheduled to take place in September.

For its part, the Board intends to appeal the decision issued by the South Carolina District Court. Chairman Gaston Pearce said of both decisions: “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”

So for now, employers do not have to post the notice and their obligation to post may not be resolved until the issue is ultimately heard by the U.S. Supreme Court. We will continue to monitor the issue and bring you updates as they develop.