Mid-April is normally a gloomy time as people prepare to file tax returns. There is some cause for celebration, though, as a federal district judge in South Carolina today (Friday the 13th of all days), issued a ruling striking down in its entirety as unlawful the NLRB’s requirement that employers post the so-called employee rights notice poster. The case is US Chamber of Commerce v NLRB (Civ Action No 211-cv-02516-DCN).pdf This ruling comes after a Federal judge in DC ruled that the enforcement provisions of the rights posting rule were invalid. The Board had set an April 30 deadline for compliance.
One of the principal arguments against the NLRB’s promulgation of this particular rule is that it is not authorized by the Act, as similar notices are authorized in the other federal employment legislation. Section 6 of the NLRA grants authority to the Board to promulgate rules that are “necessary” in carrying out its mission. Judge David Norton noted that the Board’s rulemaking authority in Section 6 of the Act is “terra incognita” and that courts have “rarely explored the parameters of Section 6, the reason being the Board has rarely exercised its rulemaking authority.” Concluding that Section 6 did not authorize the Board to issue the rights notice posting, the Judge ruled:
First, the plain language of Section 6 requires that rules promulgated by the Board be ‘necessary to carry out’ other provisions of the Act. Defendants [NLRB] argue that the rule is ‘necessary to carry out’ Sections 1 and 7 of the Act, but confuse a ‘necessary’ rule with one that is simply useful. It can be said that the notice-posting rule ‘aids’ or ‘furthers’ the aspirational goals of Section 1 by notifying employees of their rights under Section 7, but defendants have not shown that the rule is ‘necessary.’
Of course, the Act has been in existence since 1935, and no such notice has ever been required. In the intervening years, the ability to share and research information has become, literally, as easy as pressing a button. It does seem a stretch that after all these years such a poster is “necessary.”
The main question that will be on everyone’s minds in the immediate future: what happens next? The Board most certainly will appeal the ruling. In the separate litigation in DC, the plaintiffs sought to stay the ruling, which was denied. It seems likely a new attempt at staying the effective date of the rules will be made shortly.
As always, we will keep you posted as developments occur.