Court of Appeals Blocks NLRB Notice Posting Requirement

The March 26, 2012 Foster Swift Employment, Labor & Benefits E-News provided information concerning the NLRB’s new notice posting requirement, which was to take effect April 30, 2012.  As reported in that E-News, a federal court in the District of Columbia, while enjoining two aspects of the new rule, found the NLRB had the authority to implement the notice posting requirement.

On April 17, 2012, the United States Court of Appeals for the District of Columbia granted an emergency motion for injunction pending appeal and for expedited consideration.  The appellate court rejected the NLRB’s argument that the rule should take effect during the pendency of the court’s review, noting the NLRB had previously postponed the effective date of the rule because of pending litigation. 

The appellate court also noted that the D.C. district court, while upholding the NLRB’s right to promulgate the rule, invalidated the primary enforcement mechanism for violation of the posting requirement.  A cross-appeal may be filed over that aspect of the D.C. district court’s decision.  The appellate court’s order also made reference to an April 13, 2012, decision by a South Carolina federal district court which, in contradiction of the D.C. district court’s decision, held the NLRB lacked authority to promulgate the notice-posting rule at all. 

In granting the request for injunction, the appellate court determined that the “uncertainty about enforcement counsels … in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.”  The appellate court issued an expedited briefing schedule and directed oral argument to be held in September 2012.  At least until the court rules on the NLRB’s authority to promulgate a notice-posting rule, employers are not required to post the proposed notice.