UPDATE 4/17/12: DC Court of Appeals granted an injunction against the posting rule! They have scheduled to hear oral arguments some time in September. Download a copy of the filing here. UPDATE: You can get a copy of the decision here. We haven’t read carefully yet, but it is a “clean kill” of the posting rule, granting summary judgment to the US and South Carolina Chambers of Commerce against the NLRB on the basis that the Board lacks statutory authority to require a notice posting rule. What does this mean for employers? Well, if you live in the District of South Carolina, Charleston Division I think it is safe to say that the Board will not be able to enforce the notice posting rule against you, at least until either this case or the earlier DC Circuit case appeal is heard (which will take a while). The NLRB will clearly appeal this decision but at this point the District Court decision controls. What about everyone else? Unless the Circuit Court of Appeals for DC grants the request to enjoin enforcement of the rule (which may be slightly more likely now that there is a split at the District Court level – we will obviously let you know if that happens) you have two choices. Most companies will go ahead and post, pending the outcome of these appeals. Unless you have special circumstances this is our advice (but feel free to schedule a strategy call with us if you think you might have a reason to not post). This is the safest route, although we are working a case now that is the first one I’m aware of where a union is using the NLRB posting as part of their card signing effort. The second choice is to not post and take your chances with the Board. At this point the only penalty for not posting is that it can be used as evidence of union animus in an unfair labor practice case, but only on a case-by-case basis (that is because the DC District Court overruled the other penalties). While the penalty is minor compared with the original proposal, outside of South Carolina you will definitely face problems with the NLRB if you are involved in a case and learn you didn’t post. The bottom line is that you should only decide to not post the notice under the advice of an attorney. We will outline some of the key things you should consider in a webinar later this week after we have reviewed the decision more carefully. Stay tuned. ORIGINAL POST BEGINS HERE: A federal judge ruled Friday that the NLRB exceeded its authority when it required employers to post notices explaining workers’ rights to form a union. The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce had challenged the NLRB regulation in federal court in September last year. “Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds 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 in this manner,” U.S. District Judge David Norton said. Norton’s ruling contradicts another decision that of U.S. District Judge Amy Berman Jackson last month when she ruled the Board did have that authority. The poster rule was set to go into effect on April 30.
