On April 17, the U.S. Court of Appeals for the District of Columbia Circuit enjoined the National Labor Relations Board (NLRB) from enforcing a controversial rule that would require most private sector employers covered by the National Labor Relations Act to post a notice advising employees of their rights under the Act.

The request for an injunction, filed by the National Association of Manufacturers (NAM), stems from its appeal of the U.S. District Court for the District of Columbia’s prior ruling on NAM’s challenge to the Final Rule, which upheld the notice-posting requirements, but struck down the enforcement provisions of the mandate. 

While the NLRB opposed a delay in enforcement of the Final Rule pending NAM’s appeal, the D.C. Circuit disagreed. In a per curiam opinion, the appellate court noted that the uncertainty about enforcement of the Final Rule weighed in favor of temporarily preserving the status quo pending resolution of the appeal. Of particular significance to the court was the tension between the NLRB’s prior position of voluntarily postponing the rule pending litigation, with its current position that the rule should be implemented during the pendency of an appeal. Together with the NLRB’s potential appeal of another aspect of the lower court’s ruling—which severed portions of the rule as invalid—the appellate panel concluded that the tension left enough uncertainty surrounding enforcement of the rule to merit an injunction.

In support of its conclusion, the D.C. Circuit also cited a South Carolina federal court’s decision in Chamber of Commerce v. NLRB, handed down on April 13, 2012, which struck down the Final Rule on the grounds that the NLRB exceeded its authority under the Administrative Procedures Act. The South Carolina decision marked a significant victory for the U.S. and South Carolina chambers of commerce and called into question the obligation of employers nationwide to post the notice. The NLRB has stated that it intends to appeal that decision.

The D.C. Circuit’s ruling further delays implementation of the Final Rule, initially set to take effect on November 14, 2011. The NLRB has already pushed back the effective date multiple times due to apparent confusion, resistance to the rule, and pending litigation. Prior to the D.C. Circuit’s ruling, it was slated to take effect April 30, 2012. 

The D.C. Circuit ordered an expedited briefing schedule for the appeal, and directed the clerk to calendar the case for oral argument in September 2012. As a result, the injunction will remain in place until September, and employers will not be required to post the employee notice poster until then, if at all, depending on the outcome of the appeal.

After the appellate court enjoined implementation, the NLRB issued a notice on its website that said its regional offices will not implement the rule pending resolution of the issues before the courts.

If you have questions about this ruling or its implications, please contact Meredith C. Swartz at 215.864.8132 or swartzm@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.

Copyright © 2012 by Ballard Spahr LLP.
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