Court Strikes Down NLRB Posting Requirement

On Friday, April 13, 2012, a federal District Court in South Carolina issued a decision, contrary to an earlier decision issued by a federal District Court in the District of Columbia, and struck down the NLRB rule requiring employers to post an official NLRB poster about the right to unionize. The regulation was set to take effect April 30, 2012.

The Court’s Ruling & Practical Impact: In the South Carolina case, United States Chamber of Commerce v. NLRB, the Court struck down the NLRB poster rule, on the grounds that the NLRB exceeded its authority in promulgating the rule. Both parties to the South Carolina case, the NLRB and the Chamber of Commerce, stated after the Court’s decision that it was unclear if the South Carolina decision was applicable outside of South Carolina. Within a week or two, but before April 30, we should learn what the NLRB’s position will be. If the NLRB does not extend the posting deadline in light of the uncertainty created by these conflicting rulings, employers (other than those in South Carolina who are absolved of the obligation) will have a choice. They can err on the side of caution and post the NLRB notice. Alternatively, they can hold off on posting the notice (given that there is no penalty for failure to post in the absence of some other labor law violation) and wait to see how the appellate courts rule.