South Carolina Federal District Court Judge Finds NLRB's Posting Rule Unlawful

April 16, 2012

The challenges to the NLRB Posting Rule have taken another turn after the U.S. District Court in South Carolina held last week that the Rule is unlawful. Judge David Norton's April 13, 2012 decision determined that the NLRB lacked authority to enact the Notice Posting Rule it promulgated in 2011 and therefore the rule is unlawful. Chamber of Commerce v. NLRB, U.S.D.C. D.S.C., No. 11-cv-02516, 4/13/12. The basis of Judge Norton's decision is that the National Labor Relations Act places the Board in a reactive, not a proactive, role vis--vis employers covered by the Act. Judge Norton stated, "Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner." This Court's decision clearly conflicts with the recent D.C. District Court decision upholding the notice-posting provisions of the Rule, but striking for the most part the enforcement provisions of the Rule. The Chamber of Commerce has asked the Court to suspend indefinitely the Posting Rule until the legal uncertainties surrounding the Rule are resolved. Despite the legal uncertainty, employers should prepare to post the NLRB notice of employee rights by April 30, 2012. We will continue to monitor related developments on this blog site. If you have any questions about the Posting Rule, contact Patrick McGovern, Esq. or John Vreeland, Esq. in our Labor Law Practice Group.