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To Post or Not to Post? That is the Question

On April 13, an unlucky Friday for the National Labor Relations Board ("NLRB" or "Board"), U.S. District Judge Norton in South Carolina struck down the NLRB's notice posting rule. In a thirty-one page opinion, Judge Norton concluded that the NLRB "lacks the authority to promulgate the notice-posting rule." Accordingly, Judge Norton ruled that the rule is unlawful.

The National Labor Relations Act provides that the Board has authority to promulgate rules that are "necessary to carry out the provisions of" the Act. Nothing in the Act refers to or otherwise incorporates any mandate to inform employees of their rights under that Act. Further, Congress has amended the Act three times over the years, and has not added a notice posting requirement (in contrast with many other employment-related laws enacted during the same time period that do have notice posting requirements). Judge Norton found that the notice-posting requirement, while perhaps a "reasonable" rule, was not "necessary" to carrying out any provision of the Act. Therefore, the Board lacked the authority to enact the rule.

Meanwhile, as noted in a previous Wimberly Lawson Alert, a federal district court in Washington, D.C. approved the notice-posting requirement itself, while holding that some of the penalties were not enforceable. That case is on appeal to the U.S. Court of Appeals for the District of Columbia.

So for the time being, there are inconsistent court rulings regarding the validity of the notice-posting requirement itself.

It remains to be seen whether the Board will delay the posting requirement again to give the courts time to further sort out the issues, or whether the Court of Appeals will issue an opinion before April 30.

Our advice at this time is to stay tuned. It appears likely that there will be further developments before April 30.


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