• Update on the New NLRB Employee Rights Posting Requirements
  • July 12, 2012 | Author: Megan B. Caramore
  • Law Firm: Vandeventer Black LLP - Norfolk Office
  • You may recall our November 2011 article “All Employers Must Post a New NLRB Poster by January 31, 2012,” which discussed the new National Labor Relations Board (“NLRB”) requirement that employers post a notice of employees’ rights to organize and join unions under the National Labor Relation Act (“NLRA”).  Since that time, two federal courts have issued conflicting opinions regarding the controversial requirement.  In March of 2012, a federal district court in Washington D.C. upheld the poster requirement, but struck down a provision that made noncompliant employers automatically guilty of an unfair labor practice charge.  Thereafter, in April of 2012, a South Carolina district court disagreed and determined that the NLRB lacked any authority to impose the posting requirement.  The NLRB announced that it planned to Appeal the decision.

    The South Carolina and D.C. opinions created uncertainty over whether employers remained obligated to comply with the posting requirement.  In light of the conflicting opinions, the D.C. Circuit Court of Appeals temporarily enjoined the NLRB’s posting requirement while an appeal is pending before that court.  Subsequently, the NLRB announced that its regional offices would not implement the new rule pending the resolution of the issues before the court.  It is not clear exactly how long the suspension will last.  The D.C. Circuit Court of Appeals is not expected to hear oral arguments on the issue until September, with a decision expected sometime thereafter.   Even after a ruling by the D.C. Circuit Court of Appeals, the Supreme Court may ultimately be called upon to decide the issue if the federal courts continue to disagree.

    While the injunction remains in effect, employers have a temporary reprieve from the NLRB’s posting requirement.  However, employers should stay tuned in to this issue so that they can be ready to comply with the requirement should the D.C. Circuit Court of Appeals decide in favor of the NLRB.