NLRB poster deadline suspended by appeals court

The Final Rule issued by the National Labor Relations Board (NLRB) requiring employers to post employee rights under the National Labor Relations Act (NLRA) once again has been delayed after a federal district court in South Carolina granted a request for an injunction, delaying the effective date of the rule until the court has a chance to hear arguments and issue a ruling.

This means the April 30, 2012, deadline to post employee rights is no longer valid and the earliest this rule could go into effect could potentially be sometime in November or December.

The injunction was granted in response to a challenge by the National Association of Manufacturers (NAM) and the Coalition for a Democratic Workplace (CDW), of which the American Rental Association (ARA) is a member.

The groups claimed that the NLRB had overstepped its authority with its rule requiring employers to post notices explaining workers’ collective bargaining rights.

The rule requires employers operating under the NLRA to post a notice of employees’ rights regarding participation in or abstention from union activity. The poster, available from the NLRB, provides specific examples of unlawful employer and union conduct and explains how to contact the NLRB with questions or complaints.

Implementation of this rule previously was delayed while the U.S. District Court for the District of Columbia considered whether the NLRB overstepped its jurisdiction. While the court ultimately ruled that the board does have sufficient rulemaking authority under the NLRA to make the requirement, it did invalidate some enforcement sanctions in the rule, including the following:

  • The NLRB does not have the authority to state that an employer’s failure to post the notice will always constitute an unfair labor practice. Instead, the NLRB must determine in each individual case that the absence of the notice actually interfered with employee rights under the NLRA.
  • The NLRB has no authority to extend the time period set by Congress for filing unfair labor practice charges against an employer.