Haynes and Boone's Newsroom
Update: NLRB Suspends Implementation of Notice Posting Rule Pending Legal Challenges
A. John Harper III, Arthur T. Carter, Alex Stevens
On April 17, 2012, the Court of Appeals for the District of Columbia Circuit issued a decision enjoining the National Labor Relations Board (“NLRB” or the “Board”) from implementing a controversial rule requiring employers to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”). The rule’s effective date was slated for April 30, 2012. In response to the D.C. Circuit’s injunction, the Board has announced that it will suspend implementation of the rule nationwide pending the resolution of the legal challenges to the rule’s validity. The Board's announcement is available here.
The D.C. Circuit’s decision is the third decision from a federal court regarding the rule. As we detailed in a previous alert, a District of Columbia district court upheld most of the rule on March 2, 2012, although it struck down some of its enforcement provisions as outside the Board’s authority as established under the NLRA. The plaintiffs, a group of trade associations, appealed the court’s decision to the D.C. Circuit, and also asked the D.C. Circuit to enjoin the posting rule while the appeal went forward. On March 13, 2012, however, a federal district court in South Carolina rejected the notice posting rule in its entirety, finding that the NLRB had exceeded its statutory authority under the NLRA, in violation of the Administrative Procedure Act. In light of the uncertainty created by these conflicting federal district court rulings, the D.C. Circuit granted plaintiffs’ requests for an injunction.
While employers can put away their posters for now, it is currently unclear whether today’s injunction will represent a permanent or temporary victory for the rule’s opponents. Both cases are moving forward in the appeals process. The D.C. Circuit expects to hear arguments in this case in September, 2012. The NLRB has announced that it will defend the rule in the D.C. Circuit, and that it will appeal the South Carolina decision rejecting the rule. These appeals will ultimately determine whether the notice posting rule takes effect. As always, we will continue to monitor this situation and address noteworthy developments in future alerts.
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