FEDERAL DISTRICT COURT DECLARES NLRB’S “EMPLOYEE RIGHTS POSTER” UNLAWFUL ….BUT DECISION MAY NOT STOP YOU FROM HAVING TO POST IT
Judge David Norton of the federal district court in South Carolina in a case brought by the South Carolina Chamber of Commerce on Friday, April 13, held that the rule announced by the NLRB in September of last year that employers must post a Notice of Employee Rights under the National Labor Relations Act exceeded the Board’s statutory authority and is, therefore, unlawful. Judge Norton held:
Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.”
In the opinion, the Judge excoriated the Board by noting that:,
“The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles,”
As noted in my blog last fall when the proposed rule was first published, nothing in the National Labor Relations Act mentions, let alone authorizes the Board to compel employers to post, a notice advertising the protections of the Act for those employees who engage in or contemplate engaging in union activity. Simply, even the Obama Board cannot ignore the law to further its partisan agenda.
The Board’s action was contrasted to the explicit authority granted by Congress to various other agencies to publish and require notices in non-remedial situations, e.g., employment discrimination, workplace safety.
This decision conflicts with an earlier holding by Judge Amy Berman Jackson of the federal district court of the District of Columba that upheld the Board’s authority to require the posting.
Unfortunately, it is not entirely clear what the Board or the courts will do now. The South Carolina decision is just that, a South Carolina decision. It is possible that the Board may take the position that its effect will not go beyond that court's jurisdiction. The district court of South Carolina is in the Fourth Circuit (Virginia, West Virginia, Maryland, North Carolina, South Carolina). Consequently, unless you are in one of those states, the decision may not shield you from the obligation to post the notice by April 30. However, it is possible that the South Carolina decision will be construed to have a broader application because it appears to enjoin the Board and its General Counsel from doing anything to enforce the rule.
For now, employers who do not wish to voluntarily post the notice should wait until their obligation, if any, is further clarified or, at least, until after the Board indicates what it believes the application of the South Carolina decision should be.
Hopefully, the Board will suspend generally the obligation to post the notice, pending the resolution of the discrepancy between the holdings of the District of Columbia and South Carolina district courts and other outstanding issues. Most certainly, the Board will appeal the South Carolina decision, just as the DC decision has already been appealed. What it will do or be permitted to do in the meantime is still unclear.
One can hope the Board will again delay the application of the rule to permit time for these issues to be resolved, but prudence suggest that we not depend on the realization of our hopes when it comes to this Labor Board.