On August 25, 2011, the National Labor Relations Board ("NLRB") issued a final rule requiring most employers, whether unionized or not, to post a notice in the workplace entitled "Employee Rights Under the National Labor Relations Act" ("posting rule"). The poster advises employees of their rights to, among other things, organize, form, join, or assist a union; discuss wages and benefits and other terms and conditions of employment with co-workers or a union; and strike and picket. Legal challenges to the posting rule were promptly filed in two federal district courts: the District of Columbia and the District of South Carolina.
On March 2, 2012, Judge Amy Berman Jackson, sitting in the District of Columbia, ruled in favor of the NLRB's posting rule, set to take effect on April 30, 2012. On Friday, April 13, 2012, Judge David Norton, sitting in the District of South Carolina, held 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; therefore, the NLRB exceeded its authority in issuing the posting rule. With a split in the U.S. Circuit Courts, employers were left wondering whether they should post the NLRB notice by April 30, 2012, or not. On Tuesday, April 17, 2012, the Court of Appeals for the District of Columbia resolved that issue when it granted an emergency motion for an injunction suspending the NLRB posting rule pending an appeal. The Court of Appeals went on to set an expedited schedule to hear the appeal in September of this year. A decision on the appeal is expected within a reasonable time thereafter. NLRB chairman Mark Pearce announced late Tuesday that the NLRB regional offices will not implement the rule pending the resolution of the court case.
What does this mean for employers? If you are an employer subject to the National Labor Relations Act ("NLRA") you will not be required to post the NLRB notice in the workplace beginning April 30, 2012. Employers subject to the NLRA will not be subject to the posting rule or to any associated enforcement action by the NLRB. We will continue to monitor the progress of the NLRB posting rule requirement for employers and to advise when, if ever, employers will have to post the NLRB notice in the workplace.
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