Monday, April 23, 2012

NLRB Poster Rule suspended, again

The saga of the on again, off again NLRB Poster Rule has taken another turn, and this time South Carolina businesses played an active role.

The controversial rule requires employers to prominently display a poster advising workers of their right to unionize.  It was set to go into effect on April 30 after a brief delay resulting from previous court challenges.  But a challenge in U.S. District Court for South Carolina has resulted in suspension of NLRB's controversial proposed rule.

On Friday, April 13, 2012, the U.S. District Court for South Carolina, in a case brought by the U.S. Chamber of Commerce, ruled that the National Labor Relations Board (NLRB) exceeded its authority in adopting a rule requiring employers to post an employee notice of collective bargaining rights.

Judge David C. Norton held that the NLRB’s authority is limited to adjudicating unfair labor practices, and that Congress did not impart the agency with authority to compel employers to post labor rights notices.

This decision has created a split among jurisdictions, as just last month, the U.S. District Court for the District of Columbia ruled in a case brought by the National Association of Manufacturers (NAM) that the NLRB had the authority to promulgate the rule, but that failure to comply with the rule did not by itself constitute an unfair labor practice or serve to toll the statute of limitations for filing an unfair labor practice complaint. NAM has filed for appeal in this case.

Following on the heels of the South Carolina decision, on Tuesday, April 17, the United States Court of Appeals for the District of Columbia granted a temporary injunction blocking implementation of the rule pending the appeal filed by NAM. The poster rule had been scheduled to go into effect on April 30, 2012, but this is no longer the case.

The injunction stays the implementation, and employers nationwide will not have to post the collective bargaining rights poster, pending the outcome of this appeal.

NAHB continues to monitor all events concerning the poster rule and provide notification to HBA members regarding future rulings.  For more information about the poster rule, visit

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