Ultimately, it appears likely that the NLRB will once again postpone the effective date for the posting, although, as of today, no official declaration to that effect has been issued by the NLRB. We will continue to monitor both cases and advise you if the posting requirement is again delayed.
On Friday, April 13, a federal court in South Carolina ruled that the National Labor Relations Board (NLRB) lacked authority to issue the notice-posting rule. Under the NLRB’s notice-posting rule, all private-sector employers subject to the National Labor Relations Act (NLRA) must post a notice to employees informing them of their rights under the Act by April 30, 2012.
In invalidating the rule, District Court Judge David C. Norton found that Congress authorized the Board to regulate employers’ conduct in two essential areas -- preventing and resolving ULP charges and conducting representation elections -- and the agency has no authority to initiate proceedings on its own. Specifically, Section 6 of the NLRA provides that:
The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act.
The court found that the NLRB lacks authority under both the plain language of Section 6 and the structure of the Act to issue the Rule because it was not "'necessary to carry out the provisions of the Act."
As you may recall, on March 2, 2012, in a separate lawsuit, the federal district court for the District of Columbia upheld the requirement for employers to post the notice. Accordingly, Judge Norton’s decision contradicts that earlier decision. However, the District of Columbia case is currently under appeal and it is virtually certain that the NLRB will appeal Judge Norton’s decision.
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