Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA. On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case.
In addition, the Fourth Circuit Court of Appeals in Chamber of Commerce v. NLRB, __ F.3d __, Civil No. 12-1757 (4th Cir. 2013), had ruled against the NLRB on the challenge to its notice-posting rule, and, on August 13, 2013, refused to rehear its decision in that case.
The only option left, should the NLRB wish to revive its notice posting rule, is to appeal these cases to the U.S. Supreme Court.
On April 13, 2012, U.S. District Judge David C. Norton of the U.S. District Court for South Carolina, ruled in an action brought by the U.S. Chamber of Commerce and others that the National Labor Relations Board’s notice posting rule set to go into effect April 30, 2012, was “unlawful under the [Administrative Procedure Act] … 5 U.S.C. § 706….” This rule was applicable to all private employers subject to the National Labor Relations Act. The ruling conflicts with an earlier ruling by the U.S. District Court for the District of Columbia upholding in part the NLRB’s notice posting rule.
In National Association of Manufacturers v. National Labor Relations Board, et al., Civil No. 11-1629 (ABJ), U.S. District Judge Amy Berman Jackson, an appointee of President Obama’s, issued her decision on March 2, 2012, granting in part and denying in part the plaintiff association’s request to block the NLRB’s new notice posting rule which is to go into effect April 30, 2012. JudgeJackson ruled that the NLRB did not exceed its authority under the National Labor Relations Act by requiring all employers subject to the Act to post a notice advising employees of their rights under the Act. However, she also ruled that the portion of the rule which would deem an employer’s failure to post the NLRB notice to be an unfair labor practice, and the provision that tolls the statute of limitations in the case of unfair labor practice charges where the employer failed to post the notice, do in fact violate the Act and are therefore invalid as a matter of law.
The district judge declined to take up a challenge to the recess appointments by President Obama to the NLRB that occurred after the Board’s issuance of the notice-posting regulation in question.
On October 5, 2011, the National Labor Relations Board announced that it has postponed the implementation date for its new notice-posting rule to January 31, 2012. It had originally been scheduled to become effective on November 14, 2011.
The U.S. Chamber of Commerce and the National Association of Manufacturers have filed suit to block the new rule, but there has been no ruling in those cases.
The NLRB cited as reasons for the extension, the need for more time “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” No other changes in the rule, or in the form or content of the notice, were made.
Member BrianE.Hayes, who dissented from the original adoption of the rule, agreed with the postponement of the effective date of the rule.
On September 8, 2011, the National Association of Manufacturers (NAM) filed suit in the U.S. District Court for the District of Columbia to stop the National Labor Relations Board from implementing its “Posting Requirement” rule. The NLRB’s rule, which is slated to be effective in mid-November, 2011, would require all private employers who are not government contractors to put up posters informing employees in great detail of their right to organize and obtain union representation. See Wyatt blog posted December 21, 2010. The legal action asserts that the NLRB is acting outside its jurisdiction in promulgating the rule and requests that the rule be set aside.
NAM’s press release quoted NAM CEO Jay Timmons as stating:
“This rule is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have. The growing list of burdensome actions from the NLRB is causing great uncertainty among manufacturers at a time when our economy is struggling to recover. We are committed to fighting this rule in order to rein in the NLRB. We also are encouraging Congress to act soon to stop this rogue agency.”