Unless reversed or stayed before the end of the month, an April 13, 2012 ruling by a federal district court in South Carolina will block the implementation of a National Labor Relations Board (NLRB) rule that would require most U.S private-sector employers — including most of the 6 million small business in the U.S. — to post a written notice of employee rights regarding unionization. Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, and then further postponed until April 30, 2012. Now, the posting deadline is up in the air again.

A judge for the U.S. District Court for the District of South Carolina held that the National Labor Relations Act (NLRA) does not provide or support authority to the NLRB to promulgate such a rule. Although the judge specifically stated that he “does not discredit” the NLRB’s assertion that employees need additional information about their NLRA rights, he granted summary judgment to the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce, noting that “the NLRA does not require employers to post general notices of employee rights under the Act,” and that the NLRA primarily “places the Board in a reactive role” in dealing with labor complaints made by employees. According to the court, there is nothing in the NLRA that allows the Board to enlarge the authority specifically granted in the Act, and that promulgating the proposed rule would do just that. The judge’s footnote to Simon & Garfunkel lyrics — “And no one dared / disturb the sound of silence.” Simon & Garfunkel, The Sound of Silence (Columbia Records 1966) — was an effective illustration of the court’s point that “there is not a single trace of statutory text that indicates that Congress intended for the [NLRB] to proactively regulate employers in this manner.”

Earlier this year, in a case involving a similar challenge to the rule filed by the National Association of Manufacturers and other groups, the U.S. District Court for the District of Columbia conversely held that the NLRB did not exceed its statutory authority by requiring employers to post the required "Notification of Employee Rights under the National Labor Relations Act." In that case, the court concluded that the Board has the authority under the NLRA to promulgate a rule that requires all employers to post a notice, because there is nothing in the NLRA that indicates that “Congress unambiguously intended to preclude the Board from promulgating [such] a rule. . . .” National Assn. of Manufacturers v. NLRB, No. 11-1629 (ABJ), .D.D.C., 3/2/2012 (see detailed summary and a link to the opinion in the March 4, 2012 posting at www.employmentlawmatters.net). While that decision has been appealed, there had been no decision as of this date from the D.C. Circuit Court of Appeals on a request to stay the implementation of the rule.

In the more recent decision, the South Carolina court concluded that promulgation of the rule is unlawful, and granted summary judgment in favor of the plaintiffs/business groups, and against the NLRB and its members. That decision will effectively suspend the April 30 deadline, unless action is taken in the coming weeks to overturn the decision or stay its effects. Apparently, this “Dangling Conversation” will have to wait for an appellate court action to create some kind of “Bridge Over Troubled Water”. . . .