Circuit Court Temporarily Enjoins NLRB's Mandatory Posting Rule

On April 17, the U.S. Court of Appeals for the D.C. Circuit issued a temporary injunction postponing the implementation of the National Labor Relations Board's rule requiring most private employers in the United States to post a notice informing employees of their right to join labor unions and engage in other concerted activities under the National Labor Relations Act (NLRA). (National Ass'n. of Manufacturers v. NLRB, Case No. 12-5068 (D.C. Cir. April 17, 2012)).

The NLRB's notice posting rule had been scheduled to take effect on April 30 but was challenged by employer groups in separate cases in two U.S. district courts. On March 2, the U.S. District Court for the District of Columbia upheld the obligation to post the notice but invalidated certain enforcement procedures prescribed in the NLRB's rule. (National Ass'n. of Manufacturers v. NLRB, Case No. 1:11-cv-01629-ABJ (D.D.C. March 2, 2012)). On Friday, April 13, the U.S. District Court for the District of South Carolina issued an order enjoining the entire rule, concluding that the NLRB did not have authority under the NLRA to require notice posting by private employers. (U.S. Chamber of Commerce v. NLRB, Case No. 2:11-cv-02516-DCN (D.S.C. Apr. 13, 2012)).

Given the uncertainty regarding enforcement of the NLRB's rule, the D.C. Circuit Court of Appeals granted an emergency motion enjoining the NLRB's notice posting requirement pending an expedited appeal of the decision of the D.C. District Court. The effective date of the NLRB's rule is now postponed until at least September 2012, when oral arguments are to be scheduled in the case. The compulsory notice posting is described in detail in our Jones Day Commentary titled "NLRB Issues Rule Mandating Notices Informing Employees About Rights to Organize," dated September 2011 and available here.

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