CLIENT UPDATE

Putney, Twombly, Hall & Hirson LLP
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New York, NY 10175
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April 16, 2012

NLRB Workers' Rights Posting Requirement Struck Down By A South Carolina Federal Court

As we previously advised, the National Labor Relations Board (“NLRB”) adopted a rule requiring all employers covered by the National Labor Relations Act (“NLRA”), regardless of union status, to conspicuously post a notice of employee rights under the NLRA beginning April 30, 2012.  See www.putneylaw.com/client_updates.html for our other alerts on the history of the NLRB posting requirements. The NLRB’s initial rule included penalties for noncompliance with the rule, including considering the failure to post the notice as an independent unfair labor practice and tolling the statute of limitations to file unfair labor practice charges for acts allegedly committed during the period in which an employer failed to post the notice.

On March 2, 2012, the Federal District Court for the District of Columbia ruled that while the NLRB does have the authority to require all employers covered by the NLRA to post the notice, the NLRB exceeded its authority in promulgating the unfair labor practice and tolling provisions.  National Association of Manufacturers v. NLRB, No. 11-1629 (D.D.C. Mar. 2, 2012).  The appeal of this decision is pending.

On April 13, 2012, the Federal District Court South Carolina ruled that the NLRB did not have the authority to require employers to post the notice.  Chamber of Commerce v. NLRB, No. 11-02516 (D.S.C. April 13, 2012).  We expect that the NLRB will appeal this decision.

Although no New York court has ruled on the issue, given the South Carolina court’s ruling, we advise employers not to post the NLRB worker’s rights notice pending further guidance from a Federal Court of Appeals or the NLRB.  It should be noted that while failure to post the notice is not a per se unfair labor practice, it may still be viewed as evidence of anti-union animus. 

We will keep you apprised of developments.  Please do not hesitate to contact us with any questions.