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NLRB POSTING RULE AGAIN DELAYED

Posted by Attorney David McClurg in Business Management, Labor Relations / Comments

We have yet another turn in the saga of the controversial NLRB Rule requiring employers to post a notice of employee rights under the National Labor Relations Act. After two previous delays in the implementation date motivated by requests from one of the federal courts considering challenges to the NLRB’s authority to require employers to post such notices, the Rule was set to become effective on April 30, 2012.

A few weeks ago a Federal District Court Judge in the District of Columbia held that the NLRB had the authority to impose the posting requirement, but invalidated two of the three sanctions that the NLRB would have relied on to incentivize employers to comply with the rule. The business groups that filed the lawsuit appealed the decision, but could not convince the Court to stay implementation of the “Posting Rule” pending the appeal.

On April 13, 2012 another federal court hearing similar challenges to rule in South Carolina held that the NLRB did not have authority to require Employers to post notices regarding employee rights under the NLRA. Given this split in decisions of the lower courts, and the NLRB’s indication that it will appeal this second decision, the D.C. Court of Appeals issued an emergency injunction on April 17, 2012 prohibiting the NLRB from implementing or enforcing the rule pending a decision on appeals. In light of this order, NLRB Chairman Pearce issued the following statement suspending the Posting Rule:

In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.

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.

In March, the D.C. District Court found that the agency had the authority to issue the rule. The NLRB supports that decision, but plans to appeal a separate part that raised questions about enforcement mechanisms. The agency disagrees with and will appeal last week’s decision by the South Carolina District Court, which found the NLRB lacked authority to promulgate the rule.

We will continue to keep you informed of the fate of the NLRB Posting Rule, but for now, the posters do not need to go up.

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