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South Carolina Federal Court Strikes Down NLRB Posting Rule

In a highly anticipated decision – in Chamber of Commerce v. NLRB the U.S. District Court for the District of South Carolina, Charleston Division, struck down the new NLRB rule that requires employers to post an NLRB poster (that informs employees of their rights under the National Labor Relations Act) in the workplace.  A copy of the court’s decision can be read here.

Over the past several months, the NLRB’s new posting requirement has been the subject of great controversy, and is currently set to take effect on April 30, 2012.  In light of this recent court decision, however, it will be interesting to see whether the NLRB postpones the posting requirement again.  The posting requirement had already been pushed back twice, pending legal challenges to the rule.

For the first legal challenge, on March 2, 2012, the U.S. District Court for the District of Columbia upheld the posting requirement, and ruled that the NLRB had “broad authority” to issue rules.  Accordingly, although the plaintiffs in that case appealed the court’s decision, it appeared that the new posting requirement would still take effect on April 30, 2012.

In the second legal challenge (discussed in this blog entry) the court in Chamber v. NLRB reached the opposite conclusion and invalidated the NLRB’s new posting rule.  In reaching its decision, the court noted that the Board’s authority was limited to what is necessary to carry out the provisions of the NLRA.  The court then concluded that the NLRB posting requirement was not necessary, but rather “simply useful,”  to carry out the provisions of the NLRA.  The court further explained that the role of the NLRB is to be reactive as opposed to proactive in relation to employees covered by the Act.  On this issue, the court noted that the NLRB’s posting requirement “proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the Board’s reactive role under the Act.”

This ruling is good news for employers.  The fact that this decision came out of South Carolina is not entirely surprising, because South Carolina is a largely Republican state and was in the center of the dispute between the NLRB and Boeing, Inc.

In any event, the next step is to wait and see what happens with the April 30, 2012 deadline…