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NLRB Posting Rule Stricken by Court

4/16/12

Update: NLRB Posting Rule Stricken by Court

The National Labor Relations Boards posting rule mandating that private sector employers post a notice detailing employee rights under the National Labor Relations Act is scheduled to go into effect on April 30, 2012. On Friday, April 13, 2012, a federal district court in South Carolina ruled that the Board lacks the authority to order the posting, striking the rule in its entirety. This follows a March, 2012, decision by a federal district court in the District of Columbia affirming the Boards right to compel a posting but striking the enforcement scheme devised by the Board.

The Boards new rule requires, by April 30, 2012, a posting of employee rights and, in the absence of such posting, indefinitely extends the six month period during which employees may file unfair labor practice charges. The absence of such posting may also be used as evidence of an employers unlawful motive in unfair labor practice charge adjudications.

The South Carolina Court determined that the plain language and structure of the [National Labor Relations] Act compel a finding that the Board lacks authority under Section 6 to promulgate the rule. The Court further ruled that nothing in the statutory scheme, its legislative history or a reading of other employment related statutes indicate that Congress intended the Board to have authority to adopt and enforce the posting rule.

At present, it is unclear how the Board intends to proceed or how to reconcile the conflicting district court opinions. Clearly in the South Carolina federal district, the posting rule may not be enforced, pending review of or revision of the decision. The Courts ruling, however, does not excuse posting elsewhere. We expect the Board will provide insight into its expectations in the coming days. Feel free to contact us with questions, concerns and issues relating to posting strategy.

Thomas A. Dixon, tadixon@eastmansmith.com,
419-247-1616

Sarah E. Pawlicki, sepawlicki@eastmansmith.com,
219-247-1701

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