On April 17, 2012, the Circuit Court for the District of Columbia issued an injunction against the National Labor Relations Board requiring it to preserve the “status quo” regarding its efforts to require employers to post notices identifying employee rights to organize a union. In a brief order the Court granted the emergency motion for injunction pending appeal of the National Association of Manufacturers. The impact of the order will be to require the NLRB to preserve the “status quo” pending resolution of the NAM appeal of a decision of the district court of the District of Columbia that recognized the right of the Agency to require the posting, but invalidated the portions of the regulation that created a new unfair labor practice to enforce the posting requirement and permitted the agency to suspend the statute of limitations regarding the filing of those charges. The Court expressly cited the recent decision of the District Court of South Carolina on April 13, 2012 that granted summary judgment to the U.S. Chamber of Commerce in its suit seeking invalidation of the regulation on the basis that the NLRB exceeded its statutory authority in creating the regulation. See, http://www.chamberlitigation.com/sites/default/files/cases/files/2011/NAM%20v.%20NLRB%20(DC%20Circuit%20Injunction%20Order).pdf
As a result of this order, the NLRB is effectively prohibited from requiring employers to post notices apprising employees of their rights to organize unions pending the resolution of the NAM appeal on the merits. The Court also ordered that the appeal would be expedited and that all briefing would conclude on June 29, 2012 and that oral argument would take place in September 2012.
The most direct impact of this order is that employers will not be required to post the NLRB notice as scheduled on April 30, 2012 and that this requirement will not be available until such time as the D.C. Circuit renders a decision on the merits of the pending appeal. At the earliest, this date would be in the fall of 2012. We will keep you constantly apprised of all further developments regarding these issues.