NLRB Enjoined from Enforcing Notice-Posting Rule Pending Appeal

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D.C. Circuit Order prevents the Board from enforcing rule until the court resolves all of the issues before it; oral arguments scheduled for September 2012.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today has entered an Order enjoining the National Labor Relations Board (NLRB or Board) from enforcing its final rule (the Rule) requiring all employers subject to the Board's jurisdiction to post a notice in the workplace informing employees of certain of their rights under the National Labor Relations Act (NLRA).

The request for an injunction came before the D.C. Circuit as part of the National Association of Manufacturers' appeal of the U.S. District Court for the District of Columbia's decision upholding the Rule's notice-posting requirements, but striking down two of its key enforcement mechanisms.[1]

While the district court had denied a previous request for an injunction pending the appeal of its decision, the D.C. Circuit reached a different conclusion and entered an Order enjoining the Board from enforcing the Rule until the court resolves all of the issues on appeal. In reaching its decision, the D.C. Circuit cited (1) the April 13 decision handed down by Judge David C. Norton of the U.S. District Court for the District of South Carolina striking down the Rule in its entirety;[2] (2) the "tension" between the Board's argument that the Rule should take effect during the pendency of the appeal and its prior voluntary postponement of the operation of the Rule during the proceedings before the district court; and (3) the Board's indication that it may cross-appeal the district court's decision striking down the Rule's enforcement mechanisms.

The D.C. Circuit's Order also set an expedited schedule for consideration of the appeal, with oral argument to be held in September of this year. Therefore, the injunction against enforcement of the Rule will remain in place at least until September 2012. This temporarily resolves the conflict between the two district court decisions. Employers will not be required to post the notice until September 2012 or later, if at all, depending on the timing and content of the D.C. Circuit's decision.

[1]. See our LawFlash regarding that decision, "D.C. Court Issues Split Decision in NLRB Notice Case" (Mar. 6, 2012), available online at http://www.morganlewis.com/pubs/LEPG_LF_SplitDecisioninNLRBNoticeCase_06march12.

[2]. See our LawFlash regarding that decision, "South Carolina Court Strikes Down NLRB Notice-Posting Rule" (Apr. 16, 2012), available online at http://www.morganlewis.com/pubs/LEPG_LF_SCCourtStrikesDownNLRBRule_16apr12.