iEmployers have been eagerly awaiting the results of multiple lawsuits challenging the National Labor Relations Board’s (“NLRB’s”) highly controversial new rule requiring private employers to inform employees of their right to form and supp¬ort a union under the National Labor Relations Act. On April 17, 2012, NLRB Chairman Mark Gaston Pearce gave employers peace of mind by announcing that “regional offices will not implement the rule pending the resolution of the issues before the court,” following an injunction that barred the NLRB from implementing the new notice posting rule. EMPLOYERS NEED NOT COMPLY WITH THE NOTICE POSTING RULE’S APRIL 30, 2012 EFFECTIVE DATE BUT MUST STAY INFORMED OF ANY FUTURE DEVELOPMENTS.
Recent Developments Regarding the New Posting Rule
On March 2, 2012, in National Association of Manufacturers v. NLRB, No. 11-cv-1629, the D.C. district court invalidated several enforcement provisions of the notice posting rule but ultimately held that the NLRB had authority to promulgate the rule. The National Association of Manufacturers appealed the portion of the D.C. district court’s decision that validated the posting rule and requested an injunction pending the appeal (Appeal No. 12-5068). On April 17, 2012, the United States Court of Appeals for the District of Columbia granted the request for an injunction, effectively barring the NLRB from enforcing the notice posting rule. The court also ordered that the appeal be expedited, with oral argument scheduled for September 2012. The injunction was issued only days after the April 13, 2012 decision of the South Carolina district court in Chamber of Commerce of the United States v. NLRB, No. 11-cv-02516, which invalidated the notice posting rule in its entirety, reasoning that the NLRB lacked the authority to promulgate such a rule. Although the NLRB has agreed to suspend the effective date of the notice posting rule to allow resolution of pending cases, it has made clear that it intends to appeal both the National Association of Manufacturers and Chamber of Commerce decisions in an effort to implement the notice posting rule in the future.
Important Guidance for Employers
Both the injunction issued by the D.C. Circuit and the South Carolina district court’s blanket invalidation of the notice posting rule are big wins for employers. Employers are not, however, in the clear yet. Rather, employers should stay informed of similar court decisions, and should certainly follow the D.C. Circuit’s ruling on appeal. Employers should also expect further guidance from the NLRB, including a possible modification or limitation of the notice posting rule.
For now, however, employers need not comply with the notice posting rule’s April 30, 2012 effective date. The NLRB has made clear that it has chosen to suspend the effective date of the new rule pending resolution of current (and anticipated) litigation. One thing is clear: The NLRB’s notice posting rule will continue to be the subject of much litigation, and employers are well-advised to stay informed of such developments and to prepare their workplace for a potential increase in union activity.
