Bankers and other employers should note that the National Labor Relations Board (NLRB) has postponed indefinitely the effective date for its employee rights posting requirement. The posting rule, which was to have taken effect April 30, 2012, required all employers to post in the workplace a notice advising employees of their rights to engage in union organizing. The proposed posting rule has generated a great deal of controversy.
Lawsuits challenging the rule filed by the United States Chamber of Commerce, the National Manufacturer’s Association, and other employer interest groups are pending in two federal courts. Initial decisions in the lower courts were inconsistent.
In March the federal District Court for the District of Columbia upheld the NLRB’s right to impose the rule. Then, on April 13, a District Court in South Carolina ruled that the NLRB does not have the right to impose the posting requirement. The decision from the District Court for the District of Columbia has been appealed to the D.C. Circuit Court of Appeals and it is expected the NLRB will appeal the South Carolina District Court decision to the Fourth Circuit Court of Appeals. On April 16, the D.C. Circuit Court of Appeals issued an injunction barring the NLRB from enforcing its rule while the appeal in that Court is pending.
The NLRB has decided to delay enforcing its rule while the legal challenges are pending.
Employers have not seen the last of this issue, but it appears it will be at least a number of months before anything changes. The D.C. Court of Appeals has set a briefing schedule and will hear oral arguments in September. It is unclear as of now how long the possible appeal in the South Carolina case might take. It is even possible there will be conflicting decisions in the two Courts of Appeal and the dispute might end up before the United States Supreme Court.
