NLRB's posting rule on ice

April 19, 2012 By Stephanie Bouchard
Healthcare Finance News

Employers and the National Labor Relations Board may have thought that a new posting rule would go into effect at the end of April, but an injunction issued Tuesday has put the implementation of the new rule on ice.

In March, a federal judge ruled that the NLRB’s “Notice Posting Rule,” which requires most employers to post notices about employees’ legal rights to unionize, was within the NLRB’s authority to enact.

[See also: Court upholds NLRB's posting requirement.]

Several organizations, including the National Federation of Independent Business (NFIB), the Coalition for a Democratic Workplace (CDW) and the National Association of Manufacturers (NAM) had questioned the NLRB’s authority to force employers to place such postings on their properties and had sued. After the March ruling affirming the NLRB’s authority, they appealed.

Tuesday’s temporary injunction from the D.C. Court of Appeals results from the pending appeal and in consideration of a judgment made by a federal judge in South Carolina earlier this month that said the NLRB had exceeded its congressional authority.

The appellants in the case are thrilled by the temporary injunction, issuing statements proclaiming the injunction a “win.”

“This is a big win for CDW and our partners in litigation at the U.S. Chamber of Commerce, as well as a victory for employers across the nation,” said the CDW’s statement. “We are gratified the courts are stating the obvious - that the federal government dramatically overstepped its bounds. Unelected bureaucrats have no right to force employers to post what amounts to an advertisement for joining unions.”

“Today’s ruling is a victory for small business owners who have been left at the mercy of NLRB’s unlawful rule,” said Karen Harned, executive director of NFIB’s Small Business Legal Center in NFIB’s statement. “By delaying the poster rule until the appellate court has time to consider the merits of NFIB’s appeal, small business owners can breathe a temporary sigh of relief. Of course, real relief will not come until the court rules that NLRB does not have the power to issue edicts empowering Big Labor and hurting small business.”

The NLRB issued a statement saying that it continues to support the March ruling, which affirmed the board’s authority and that it will appeal the South Carolina decision. “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,” said Mark Gaston Pearce, the board's chairman, in a statement.

The D.C. Court of Appeals may not rule on the issue until this summer, or may even wait to see what happens in the presidential election in November said labor lawyer David Hoskins, of Frost Brown Todd in Kentucky.

“The clear thing for now is that (employers) don’t have to put the notice up,” said Hoskins. “There was definitely a judgment call before the injunction (Tuesday) whether or not they wanted to do it (post the notices) or not. Now that decision’s been made. Depending on the results of the election this fall, the issue may go away altogether.”

Hoskins pointed out that the NLRB members are appointed by the president and so usually share the same views. “If the Republican nominee were to win in the fall, most likely this regulation would wither and go away,” he said. And even if the court upholds the regulation, a Republican-dominated board could undo the regulation somewhere down the road. “It wouldn’t be an easy process,” he said, “…but it could be done; most likely would be done.”