South Carolina Court Says “No” To NLRB Posting Rule

By Richard J. Morgan

For over 75 years, the National Labor Relations Board (NLRB) was one of a very few federal labor agencies that didn’t require employers to post a general notice of employee rights in the workplace. Yet, on December 22, 2010, the NLRB decided it would change its 75-year history. On that date, the NLRB proposed a rule that would require all employers subject to the National Labor Relations Act (NLRA) to post notices informing employees of their rights under the NLRA.

After the required notice and comment process, the NLRB published its final rule on August 30, 2011. After a number of extensions, the rule is currently set to take effect April 30, 2012.  However, the rule, and its posting requirements, may be delayed again because of an ongoing court battle.

The U.S. and South Carolina Chambers of Commerce filed a lawsuit seeking review of the final rule. In extensive briefings from the Chambers and the NLRB, U.S. District Court Judge David Norton reviewed the rule and determined that the Chambers’ position was correct — specifically, the Board, in promulgating the final rule, exceeded its authority in violation of the Administrative Procedure Act.

Judge Norton’s opinion provides a thorough review of the NLRA, its purposes, and how rule making should be performed under the Administrative Procedure Act. His very detailed analysis included a chart comparing other federal labor and employment statutes’ posting requirements with those of the NLRA. Interestingly, the three laws that generally comprise the NLRA (the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act) contain no statutory mandate to post any notice as required by the NLRB’s rule. Other statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Occupational Safety and Health Act (OSH Act), and the Family and Medical Leave Act (FMLA), contain specific statutory authority requiring that employers post notices outlining rights and remedies under the statutes.

In reaching his decision, Judge Norton went through the applicable case law in a statutory construction case. He found that the plain language of the Act “compelled” a finding that the NLRB lacked authority under the Act’s language to promulgate the rule.

The court’s conclusions can be summed up as follows:

  1. The rule is “useful” but “not necessary” to carry out the provisions of the NLRA.
  2. The NLRB is an agency that reacts to charges filed by others, and the rule “proactively dictates employer conduct prior to the filing of any petition or charge.”
  3. There was no statutory “gap” for the NLRB to fill.

With those conclusions, Judge Norton ruled in the Chambers’ favor. This appears to suggest that, for the moment, no notice will be required of South Carolina employers on April 30. In the meantime, it is likely that the NLRB will voluntarily put a nationwide hold on enforcing the posting of the notice in the interest of settling a conflict between the South Carolina ruling and a separate decision from the federal district court in Washington, D.C.

We will have more detailed information in the May issue of South Carolina Employment Law Letter.

Richard J. Morgan is a shareholder at McNair Law Firm and is an editor of the South Carolina Employment Law Letter