After the National Labor Relations Board published its final rule requiring all employers subject to the Board's jurisdiction to post a notice advising employees of their rights under the National Labor Relations Act, employer groups filed two lawsuits challenging the validity of the rule. On March 2, 2012, a federal district court in Washington, D.C., upheld the posting requirement, but struck down two of the rule's penalty provisions. On Friday, April 13, 2012, a federal district court in South Carolina threw the rule out in its entirety.
The court disagreed with the Board's argument that the rulemaking authority in Section 6 of the NLRA, which authorizes the NLRB to promulgate "such rules and regulations as may be necessary to carry out the provisions of this Act," is broad enough to encompass the notice posting rule. According to the court, the NLRA authorizes the NLRB to regulate employer conduct in two areas: the adjudication of unfair labor practice charges and the conduct of representation elections, each of which must be initiated by an outside party. Contrary to this statutory scheme, the court concluded that the "notice-posting rule proactively dictates employer conduct prior to the filing of any petition or charge," and as such, "is inconsistent with the Board's reactive role under the Act."
The court's order granted summary judgment to the plaintiffs – the Chambers of Commerce of the United States and South Carolina. It did not enjoin the NLRB from proceeding with the scheduled implementation of the posting rule on April 30, 2012. However, the court's ruling represents a serious setback for the Board, and it is entirely possible the Board may extend the implementation date yet again while the validity of the posting rule is sorted out on appeal. With the deadline for posting fast approaching, we expect some clarification from the Board (or possibly the D.C. Circuit) in the very near future.
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