This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Practice Group.
Readers of this blog may recall our article from March 6, 2012, where we noted that the NLRB’s controversial Final Rule requiring employers to notify employees of their NLRA rights had been upheld by the U.S. District Court for the District of Columbia (pdf). We pointed out at that time that there was another federal court challenge to the Final Rule which had not yet been adjudicated.
On April 13, 2012, Judge David C. Norton, of the U.S. District Court for the District of South Carolina, decided that the Board did not have the authority to issue the Notice Posting Rule (pdf) and therefore found it unlawful under the Administrative Procedure Act.
Unlike Judge Jackson of the D.C. District Court, who ruled that the Board had “broad authority” to issue such rules, Judge Norton found that the Board’s rule-making authority was limited to subjects necessary to carry out its functions under the NLRA, such as investigating unfair labor practice charges and conducting representation elections. The Board’s role was to be “reactive,” Judge Norton held, not “proactive.” He also questioned whether the Board's Final Rule was consistent with Congressional intent, noting as follows:
"Congress has inserted at least eight additional notice requirements in federal labor laws since 1934, while the NLRA remained silent. . . . Congress clearly knows how to include a notice-posting requirement in a federal labor statute when it so desires."
Of most immediate concern is how the Board will respond to the South Carolina decision, which on its face relieves only South Carolina employers from the obligation to post the Notice which is otherwise effective on April 30. No doubt the Board will appeal Judge Norton’s decision to the U.S. Court of Appeals for the Fourth Circuit. (The Court of Appeals for the D.C. Circuit is already considering appeals from Judge Jackson’s March 2012 decision.)
Will the Board voluntarily delay the effective date of the posting requirement pending further developments? We would hope that as a federal agency charged with implementing uniform, nation-wide labor relations policies, the Board will again postpone the posting requirement, but we shall await the Board’s pronouncement and will communicate further once the Board announces its decision.