NLRB Posting Requirement Delayed Once Again

On March 2, 2012, the federal district court in the District of Columbia in a case brought by the National Association of Manufacturers (NAM), et al., partially overturned the NLRB’s pro-union posting regulation.  In so doing, the court upheld the Board’s authority to require employers to post the notice on April 30, 2012, as announced, but invalidated two provisions of the posting regulation that permitted the Board to deem failure to post an unfair labor practice and to toll the statute of limitations for claims brought by employees against employers who failed to post the notice.  The court’s decision was appealed by NAM who also requested an injunction that the April 30 posting date be delayed pending arguments on the merits of its appeal and the subsequent court decision.

Last Friday, another federal district court in South Carolina in a case brought by the US and South Carolina Chambers of Commerce, held that the NLRB does not have authority to require employers to post the notice.  The effect of this decision put into question whether or not the Board would require employers to post the rule on schedule on April 30 or delay enforcement as a result of the South Carolina decision.

In the meantime, the D.C. Circuit Court of Appeals has at least temporarily answered the question posed by last Friday’s decision in South Carolina.  Today, the D.C. Circuit granted NAM’s request for an injunction.  This means that the April 30 posting date is no longer in effect and that employers do not have to post the NLRB’s poster at the end of this month.  It has been estimated that the earliest the posting requirement can go into effect could be November or December, if it ever goes into effect at all!

We will keep you posted as things develop.