The D.C. Circuit Court of Appeals has enjoined the National Labor Relations Board from enforcing its notice-posting rule while the court considers the appeal of a federal trial court's decision partially invalidating the rule.
Executive Summary: The D.C. Circuit Court of Appeals has enjoined the National Labor Relations Board from enforcing its notice-posting rule while the court considers the appeal of a federal trial court's decision that upheld the Board's authority to require the posting but struck several of the enforcement provisions. See National Association of Manufacturers v. National Labor Relations Board (April 17, 2012). Accordingly, employers can refrain from posting the notice until the court rules on the appeal.
In granting the injunction, the court relied, in part, on the April 13 decision of a federal trial court in South Carolina, which held that the Board lacked authority to promulgate the notice-posting rule. For a discussion of this decision, please see our April 16 Legal Alert, Court Rejects Board's Notice-Posting Requirement, located at http://www.fordharrison.com/shownews.aspx?Show=8214. The court also noted that the Board suspended the rule while the case was pending before the lower court to give that court an opportunity to consider the legal merits before the rule took effect and held that this "postponement is in some tension with the Board's current argument that the rule should take effect during the pendency of this court's proceedings before this court has an opportunity to similarly consider the legal merits."
Employers' Bottom Line: The injunction is good news for employers, who can refrain from posting the notice until the court determines whether the Board has the authority to require employers to post the notice. We will continue to keep you updated on this issue.
If you have any questions regarding this Legal Alert or other labor or employment related issues, please contact the Ford & Harrison attorney with whom you usually work.