NLRB Notice — Posting Rule Declared Unconstitutional

May 13, 2012

On April 13, a federal district court in South Carolina ruled that the National Labor Relations Board did not have authority to issue its notice-posting rule.  This is in contrast to a ruling by a federal district court in Washington D.C. which held the rule was valid.  Unfortunately, the South Carolina court did not prevent enforcement of the rule with an injunction, which means that, technically, the rule still takes effect on April 30, 2012.

While the case arising out of the Washington D.C. federal court is currently on appeal, it is virtually certain that the NLRB will appeal the South Carolina ruling.  However, there has been no indication as to whether the Board will once again postpone the implementation of the rule at the end of the month.  Accordingly, employers would be well advised to discuss the risks associated with a decision not to post the notice.  Finally, since posting the notice will likely lead to questions being raised by employees, employers should train supervisors on the new rule and what can legally be said with respect to the company’s position on unions.