On Friday, in the same Republican state in the news last year at the center of the dispute between the National Labor Relations Board and Boeing, Inc., South Carolina District Judge David Norton ruled that the Board exceeded its authority in promulgating a rule requiring employers to post notices advising employees of their rights to unionize.

Pending before that court was a lawsuit brought by the Chamber of Commerce challenging the Board’s ability to mandate these postings, similar to a lawsuit the National Manufacturer’s Association and others brought last year – and lost last month – in a Federal District Court in Washington D.C.  We discussed that unfortunate result for employers here.

Judge Norton obviously felt different about the matter.  In his decision, he said that Congress did not enact such a rule nor delegate this authority to the Board, and emphasized that the legislature has specifically chosen not to do either, despite implementing similar notice rules as it relates to the enforcement of a number of other federal labor laws during the last three-quarters of a century.  Moreover, according to Judge Norton, the plain language of the National Labor Relations Act doesn’t provide the Board the power to independently implement such a rule.   Judge Norton added that such a rule was not essential to carry out any other provision of the NLRA, as the Board argued.

Now things really get interesting.  As most businesses know, the Board’s posting requirement is set to be effective for employers everywhere in just two weeks on April 30, 2012.  With the conflicting decisions which now exist on the legality of the Board’s promulgated posting requirement, there’s a fair amount of uncertainty for employers as to what their obligations are under the rule.

Technically, an argument can be made that the posting rule remains in effect starting on April 30 for employers everywhere other than in South Carolina, but that lack of uniformity in federal labor policy is certainly not something employers are eager to see.  Hopefully, the Board feels the same way and will further postpone the effective date of its rule until a further appellate court takes up the matter.  Obviously, time will tell.

Stay tuned to the Employment Essentials blog for updates on this critical story as it unfolds.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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