Employers Will NOT Be Required to Post Notices by April 30, 2012

Litigation over the rule titled “Notification of Employee Rights Under the National Labor Relations Act” continues to bring bad news to the National Labor Relations Board (NLRB).

In an order issued on Tuesday, April 17, 2012 in National Association of Manufacturers v. NLRB, the U.S. Circuit Court of Appeals for the District of Columbia Circuit issued an emergency injunction pending court review blocking the April 30, 2012 effective date of the Notification Rule.

On March 2, 2012 in that case, the D.C. District Court upheld the Board’s right to require employers to post the notice, but struck down the two principal remedy provisions of the rule: tolling of the six-month statute of limitations and an automatic Section 8 (a) (1) unfair labor practice violation for failing to post the notice (available here). On Friday, April 13, 2012, Judge David C. Norton of the U.S. District Court for the District of South Carolina ruled that the NLRB lacks the authority to promulgate the notice-posting rule, and as such, the regulation is unlawful.

Compliance Deadline Delayed for Third Time

Before the D.C. Circuit issued this injunction, the notice-posting requirement was scheduled to take effect on April 30, 2012. This marks the third delay in the effective date of the rule, which was adopted by the NLRB in final form on Tuesday, August 30, 2011. At that time, the compliance deadline was scheduled for November 14, 2011.

1. On October 5, 2011, the National Labor Relations Board postponed the implementation date for its new notice-posting rule from November 14, 2011 until January 31, 2012.
2. On December 23, 2011, the NLRB again delayed the compliance date, to April 30, 2012.
3. On April 17, 2012, the District of Columbia Circuit Court of Appeals enjoined the effective date of the rule pending its review of the appeals in National Association of Manufacturers v. NLRB.

Conclusion

Employers may not put their plans for posting this notice on indefinite hold. According to the expedited schedule in this case, oral argument will not be held until some time in September 2012. It is expected that the injunction will remain in place pending a decision by this court.

The injunction is sure to be a major disappointment for the National Labor Relations Board and its Chair, former union attorney Mark G. Pearce. Pearce and former NLRB member Craig Becker advocated using the NLRB’s “rulemaking” authority to circumvent Congress and implement aspects of the Employee Free Choice Act. The final rule was adopted by a vote of 2–1, with Chairman Pearce and Member Becker voting in favor of adoption. As Becker’s recess appointment expired, Pearce is the only current member of the Board that voted to adopt the rule.

A review of the Board’s website, reveals that the NLRB frequently posts announcements or news releases regarding NLRB successes. For example, on March 28, 2012, the Board published a news release announcing that it successfully obtained an injunction against a Brooklyn apartment building ending a lockout. However, until 4:15 p.m. on Tuesday, April 17, 2012, there was no mention on the Board website of the injunction issued by the District of Columbia Circuit Court, the decision of the South Carolina District Court in Chamber of Commerce v NLRB, and the D.C. District Court decision in National Association of Manufacturers v. NLRB. Finally, the Board issued a press release confirming that its regional offices would not be enforcing the posting rule pending the appeals. The Board announced that it would be appealing the unfavorable parts of the March 2, 2012 National Association of Manufacturers  ruling as well as the entire decision in the Chamber of Commerce decision. NLRB Chair Mark Pearce was quoted saying:

We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.

The injunction is another example of what is almost a daily reminder that employers must remain vigilant to the ever-changing aspects of this rule.

Employers must remember that the amended NLRB election procedures will take effect April 30, 2012, unless both houses of Congress vote in favor of a joint resolution of disapproval under the Congressional Review Act before April 30, 2012.

We will continue to monitor the progress of these legal challenges along with all other developments associated with this NLRB rule.

If you have questions about this new rule or about implementing preventative measures in your business to avoid unfair labor practice charges, please contact :

• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Julie P. Apter (716.566.5458; japter@goldbergsegalla.com)
• Richard A. Braden (716.566.5436; rbraden@goldbergsegalla.com)
• Seth L. Laver (267.519.6877; slaver@goldbergsegalla.com)
• Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com),

or another member of the Goldberg Segalla Labor and Employment Practice Group