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Rulings Go Against Labor Board Which Suspends Board Posting Requirement

The National Labor Relations Board (“NLRB”) has had a bad couple of days in its efforts to push through a new workplace poster requirement advising employees of their rights under the National Labor Relations Act (“NLRA”).  In less than a week, it lost two key court decisions affecting this initiative.  Following these rulings, the Chairman of the NLRB, Mark Gaston Pearce, announced Tuesday, April 17, 2012, that the NLRB was suspending the poster requirement.

The First Case

On Friday, April 13, 2012, the United States District Court for the District of South Carolina issued an order finding that the requirement to post the NLRB poster violates the law.   The court in Chamber of Commerce of the United States v. National Labor Relations Board found that the rule was not necessary to carry out a provision of the NLRA but was merely a rule that “aids” or “furthers” the NLRA – a key distinction.  As the court stated, “‘Looking to the statutory language as a whole’, the text of the Act shows that the Board’s rule is not ‘necessary to carry out’ any provision of the Act.”  Slip Opinion at 20.  The court further found that the NLRB did not have the authority to issue the rule under the NLRA.  Finally, the District Court found that there was no “gap” in the law that this rule was meant to fill.  Thus, the court ruled, the NLRB had no authority to issue the rule on the NLRA rights poster, and the court entered summary judgment against the NLRB.  This was a big victory for employers challenging the requirement to post this NLRA rights poster in the workplace.

The Second Case

On the heels of the Chamber of Commerce ruling, the Court of Appeals for the District of Columbia entered an injunction against the NLRB to prohibit the agency from proceeding with its poster requirement.   As noted in a prior Spencer Fane Client Alert, in National Association of Manufacturers v. NLRB, the United States District Court for the District of Columbia struck down the enforcement provision of the NLRB’s poster requirement for employers on March 2, 2012.  However, the court permitted the NLRB to proceed in requiring employers to post the NLRA poster.  The NLRB, the court said, could not find that the failure to post the poster was an unfair labor practice or evidence of bad intent by the employer.  The National Association of Manufacturers appealed the court’s ruling allowing the NLRB to require employers to post the NLRA poster and requested that the Court of Appeals stop the NLRB’s rule pending the appeal.  Yesterday, the Court of Appeals agreed and issued the injunction.

The NLRB Responds

When these rulings were issued, it was unclear whether the NLRB could move forward with the requirement outside of the geographic jurisdictions of the courts that issued the rulings.  The NLRB resolved this issue just hours after the injunction was entered by suspending the requirement for posting the NLRA poster. In a statement issued from the NLRB’s website on April 17, 2012, Chairman Pearce stated: “In view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”

So Now What?

For now, the requirement to post the NLRA poster is suspended.  Given that there are now two different opinions which reach different conclusions on whether the NLRB has the right to force employers to post the rights of employees under the NLRA, the issue may end up before the Supreme Court.   We will be monitoring the issue closely and providing updates as they happen.  Stay tuned.