The United States District Court for the District of South Carolina just struck down the NLRB poster requirement set to go into effect on April 30, 2012. Contrary to the District Court for the District of Columbia ruling, the federal court in South Carolina found that the NLRB exceeded its authority in promulgating the rule. Thus, according to the South Carolina court, the poster requirement is invalid.
Judge Norton concluded that there was nothing in the National Labor Relations Act to support a posting requirement. Early into the opinion, the Court foreshadowed its ultimate conclusion with a chart listing all of the other labor and employment laws and their specific statutory citations for poster requirements—noting “None” for the labor law. The Judge returned to this point several times in his opinion — for instance, finding that:
Congress clearly knows how to include a notice-posting requirement in a federal labor statute when it so desires. “Where Congress has consistently made express its delegation of a particular power, its silence is strong evidence that it did not intend to grant the power.” Alcoa S.S. Co. v. Fed.Mar. Comm’n, 348 F.2d 756, 758 (D.C. Cir. 1965). Less than eight years ago, Congress amended the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) to impose a new requirement: “Each employer shall provide to persons entitled to rights and benefits under [USERRA] a notice of the rights, benefits, and obligations of such persons and such employers under [USERRA].” Veterans’ Benefits Improvements Act of 2004, 33 U.S.C. § 4344(a). Congress’s continued silence in the NLRA is indicative of its intent.
Based on the foregoing, the Court did not even find it necessary to consider the other issues from the DC Court’s ruling – whether failing to post was its own unfair labor practice and whether failing to post could toll other unfair labor practice charges.
Shawe Rosenthal attorneys are digesting this decision and will have a fuller analysis tomorrow.