As followers of labor law know, the National Labor Relations Board has issued a rule requiring nearly all private sector employers to post a notice about labor unions.   The posting was originally supposed to go into effect last fall, but, after some legal wrangling, the NLRB decided to delay implementation until April 30, 2012.   The legal issues are still being hashed out in federal court and the ultimate fate of the poster is in the air.

The big — and legitimate — complaint from employers is that the poster is one-sided.  It goes on and on about all of your rights to join a union (and does so in a multitude of foreign tounges, including Amrahic, Bosnian, Bengali, Farsi, Haitian Creoli, Lao, Pashto, Somali, and, my personal favorite, Urdu), but only includes one line about an employees’ right not to join a union.   Many law firms — including mine — have developed “counter posters” that employers can post (feel free to email me if you’d like a copy of these posters).

But what if state governments also got into the poster business and started to mandate posters that, are, well, more “balanced”?   The folks down in South Carolina are taking that step.   Last week, every Republican member of the House in South Carolina signed onto its own “union poster” that will inform employees about their rights in Right-to-Work South Carolina.   The exact wording of the poster was not released, but suffice it to say that the final version will be very different from the pro-union NLRB poster.

In discussing this issue with one of my intrepid colleagues, an interesting question came up: would a poster such as this be preempted under the NLRA?  On the one hand, a strong argument can be made that this is simply a state informing its citizens of their rights under state labor law.  On the other hand, the NLRA has a broad preemption provision and it might be argued that the NLRB’s own poster should be the sole word on “labor rights” (even if that poster is not entirely fair).   Watch for this preemption battle to erupt if SC moves forward with this poster idea.