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NLRB Posting Rule a Bust!

    NLRB Posting Rule a Bust!

    The National Labor Relations Board (“NLRB”), which is the executive agency charged with administering and enforcing the National Labor Relations Act (“NLRA”), promulgated a rule on August 30, 2011, requiring employers to post notice of employees’ Section 7 rights to form, join, or assist a union; negotiate with their employers through a union; bargain collectively through representatives of their choosing; discuss terms and conditions of employment with co-workers or a union, such as wages and benefits; act to improve working conditions; strike and picket; or elect not to engage in any of these activities, including becoming or remaining a union member. The rule, slated to take effect on April 30, 2012, has suffered a major blow that will delay the rule’s implementation until, at the earliest, fall of 2012.

    On April 13, 2012, a South Carolina judge, analyzing the plain language of the NLRA and its legislative context and history, ruled that the NLRB exceeded its authority in promulgating the posting rule. On the heels of that decision, the U.S. Court of Appeals for the D.C. Circuit granted an emergency motion and enjoined the NLRB from enforcing the posting rule until the appeal pending before that court is decided. Oral argument in the case is scheduled for September of this year, and a final ruling is expected in the fall of 2012 at the earliest. This contentious issue may result in a showdown before the U.S. Supreme Court, which would likely occur in 2013 at the earliest.

    For now, the April 30, 2012, deadline is not in effect, and employers are not required to comply with the posting rule for the time being. The existing posting requirement for federal contractors remains in effect. More information about the rulings, including copies of the court opinions, is available here.

    By Deidra A. Nguyen, Littler Mendelson, P.C.

     

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