Labor & Employment Alert: NLRB April 30 Poster Deadline Postponed – Yet Again

By Terry Shumaker
April 19, 2012

With the April 30, 2012, deadline just around the corner, private sector employers were given another reprieve on Tuesday by the District of Columbia Circuit Court of Appeals. The appellate court enjoined the National Labor Relations Board’s rule from going into effect pending its review of a District Court judge’s decision upholding the NLRB posting requirement on March 2, 2012.

The path of the notice highlighting employee rights to unionize, engage in other protected activity and file charges with the NLRB has been checkered to say the least.  Originally slated to go into effect on November 14, 2011, it was first postponed by the NLRB at the federal court’s request. Most observers believed the notices would have to go up on April 30 once that judge upheld the rule. Then just last Friday a different federal judge in South Carolina ruled that the notice rule exceeded the NLRB’s authority. This left the entire issue up in the air because that ruling only applied in South Carolina.

Unlike the South Carolina ruling, the stay issued by the D.C. Court of Appeals applies nationwide and the chairman of the NLRB announced this week that in view of the court’s order and the “strong interest in the uniform implementation of agency rules” that the NLRB would not enforce the rule pending resolution of the appeal which is currently slated to be heard in September. NLRB Chairman Mark Gaston Pierce further commented that the board  believes it has the authority to order the notices posted, and that they would provide “a genuine service to employees who may not otherwise know their rights under the law.”

Unless the Supreme Court steps in, which is unlikely, it appears that the earliest employers may have to post the NLRB notice, if it is upheld, will be late fall. It should be noted that this stay does not change the requirement that federal contractors have to post a similar USDOL required notice regarding employee rights, which they should have already posted.

Further questions regarding the NLRB notice may be directed to Glenn Israel (207-228-7291, gisrael@bernsteinshur.com).