Employment Law Alert

U.S. Court of Appeals Enjoins NLRB from Enforcing Posting Requirement on NLRA Rights

April 1, 2012

On April 17, 2012, the U.S. Court of Appeals for the District of Columbia Circuit temporarily blocked the National Labor Relations Board (NLRB) from implementing and enforcing a rule published by the NLRB on August 30, 2011. The rule was set to go into effect on April 30, 2012, and requires employers to post a notice to employees informing them of their rights under the National Labor Relations Act, including rights to act together to improve wages and working conditions, to form and join a union, and to bargain collectively. 

The appeals court’s decision prevents implementation of the rule while legal challenges to it make their way through the appellate court process.  These challenges include allegations that the NLRB overstepped its authority in enacting the rule and that the NLRB lacks the authority to enforce parts of the rule.  The appeal which gave rise to the April 17th injunction was from a district court’s decision which found that the NLRB had the authority to promulgate the posting rule but lacked authority to enforce some remedial provisions included in the rule. On April 13, 2012, in a separate proceeding, a U.S. district court judge in South Carolina found that the NLRB lacked authority to enact the rule.  The differences between the District of Columbia and South Carolina federal courts’ opinions will ultimately be resolved by the appellate courts, and potentially by the U.S. Supreme Court.

This is not the first time implementation of the controversial rule has been delayed. In January, 2012, and October, 2011, Morse notified clients that implementation of the new rule was voluntarily postponed by the NLRB  in order to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses” and to “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” This time, though, the delay in implementation is the result of a court order, and there has been no new posting deadline set.

The practical effect of the appeal court’s injunction is that private employers (except those who are federal contractors or subcontractors) do not have to make any NLRB postings by April 30. Further, if the NLRB’s authority is upheld, implementation of the rule and posting deadlines will not go into effect until after a final decision in the appeals court case, which is not expected until late 2012. 

For more information on this topic, please contact a member of our Employment Practice Group.

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