[author: David McCormack]

Following two recent court opinions, the National Labor Relations Board (NLRB) announced that it has postponed indefinitely the effective date of its previously announced rule requiring employers to post a Notice of Rights under the NLRA. The posting requirement was scheduled to go into effect April 30, 2012. 

The first opinion was issued on April 13, 2012, by U.S. District Judge David C. Norton, in an action filed in the US. District Court in Charleston. That case, which was initiated by the U.S. Chamber of Commerce and the S.C. Chamber of Commerce, challenged the NLRB’s authority to issue the posting rule. In a thorough and well-reasoned opinion, Judge Norton concluded that, “[b]ased on the statutory scheme, legislative history, history of evolving congressional regulations 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.” Consequently, the court found that the NLRB lacked the authority to promulgate the notice posting rule and that the rule was therefore unlawful. The NLRB has announced its intention to appeal Judge Norton’s decision. 

The second opinion was issued on April 17, 2012, by the U.S. Court of Appeals for the District of Columbia. An earlier opinion from the U.S. District Court for the District of Columbia found the NLRB’s posting rule valid. Plaintiffs unsuccessfully petitioned the District Court to defer implementation of the rule while awaiting appeal to the DC Circuit of Appeals. Plaintiffs then filed an emergency motion seeking to enjoin the NLRB from enforcing the posting rule pending appeal.  

In granting plaintiffs’ request for an injunction, the court noted Judge Norton’s opinion and concluded that uncertainty about the validity of the posting rule favored preserving the status quo during the appeal. Later that same day, the NLRB announced that it was postponing implementation of the rule pending resolution of the issue before the DC Court of Appeals.

For the moment, therefore, employers do not need to comply with the posting rule. However, employers should monitor the situation since the ultimate outcome is not yet known.

If you have any questions concerning the issues raised in this alert, please contact David McCormack, the author of this alert, or any of Womble Carlyle's Labor and Employment attorneys.