The SC Chamber of Commerce is hoping that a recent D.C. Circuit Court ruling against the National Labor Relations Board (NLRB) will prompt the South Carolina District Court to reconsider the NLRB’s authority in a pending appeal.
The regulation would require all employers who are subject to the National Labor Relations Act – nearly all employers – to post a notice of employee rights. The NLRB argued that failure to post constituted an unfair labor practice. The D.C. court found fault not with the rules, but with the methods of enforcement. As a result, the whole law had to be struck down because part of it was deemed problematic.
“The Board is currently reviewing the court’s decision on the employee rights notice rule and will make a decision on further proceedings at the appropriate time,” said an NLRB spokesperson. “The rule is also currently under review by the Fourth Circuit.”
Indeed, the ruling could impact a similar case currently under appeal in the South Carolina Fourth District Court. The state Chamber of Commerce won a suit against the NLRB in South Carolina District Court last year. The court ruled that the Labor Relations Act did not give the Board the authority to require postings.
“[The D.C. ruling] doesn’t have direct effect on South Carolina, but gives guidance on how a court could look at it in a different way,” said Benjamin Glass, who represents the pro-business plaintiffs led by the chamber. He said the larger issue is that the NLRB has overstepped its bounds, and has been trying to recast its role from being an impartial party into an agency whose mission is union organization.
Glass said unions had been unfairly accusing employers of unfair labor practices whenever businesses voiced their opinions on union issues. The postings also paraphrase parts of the National Labor Relations Act. He said the business community felt the language placed more emphasis on issues that would encourage unionization but didn’t include what employees would have the right not to do.
Judges in the D.C. court also discussed whether forcing companies to post messages was somehow an infringement of their constitutional free speech rights. Glass said the chamber had raised that argument in the initial suit, but the court did not address it.
All of the litigation is technically preemptive. The Employee Rights Notice Posting Rule, as it is named, was never implemented or enforced. It was scheduled to take effect on April 30, 2012, but on April 17, 2012, the Board suspended its implementation in light of a D.C. Circuit order temporarily halting the rule while litigation was pending.
