The United States District Court for the District of South Carolina late last week decided that that National Labor Relations Board (NLRB) exceeded its statutory authority when it promulgated its much debated notice-posting rule. While this decision was a setback to the agency’s efforts to require employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA), a bigger blow to those efforts came today when the United States Court of Appeals for the D.C. Circuit issued a temporary injunction against the rule. The rule was set to take effect on April 30, 2012.
The District Court in South Carolina ruled [pdf] that, although the rule might be useful, the NLRB exceeded its rulemaking authority when it failed to show that the proposed rule was “necessary” to carry out any provision of the NLRA. Moreover, the Court was not persuaded that the NLRA’s silence regarding a notice posting requirement was a statutory “gap” that permitted the NLRB to promulgate a rule.
Then, the D.C. Circuit today granted a temporary injunction pending the appeal of a prior district court ruling in which the U.S. District Court for the District of Columbia upheld the NLRB’s authority to promulgate the rule, which prohibits the rule from going into effect.
As a result, employers will not be required to post the required notice by April 30. We will continue to closely monitor this situation as these developments are occurring rapidly.
