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D.C. Court of Appeals Blocks Notice Posting Rule Pending Appeal; April 30 Date on Hold

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April 17, 2012

Employers across the country can breathe a little easier today, as an appellate court has put the National Labor Relations Board’s notice posting rule on hold.  It will not take effect on April 30.

As we noted in recent alerts, federal district courts in South Carolina and the District of Columbia recently issued decisions on the legality of the Board’s notice posting rule that was scheduled to take effect on April 30.  In an order last Friday, the South Carolina district court broadly ruled that the NLRB simply did not have the statutory authority to require employers to post a notice of employee rights under the National Labor Relations Act (NLRA).  The D.C. district court had previously upheld the legality of the notice posting rule itself, while overturning certain provisions, but declined to block enforcement of the rule while the National Association of Manufacturers (NAM) and the National Federation of Independent Business (NFIB) appealed the decision.  However, this morning, the U.S. Court of Appeals for the District of Columbia Circuit granted the NAM and NFIB’s emergency motion for an injunction pending appeal.  The Court’s injunction effectively means that employers covered by the NLRA will not be required to comply with the notice posting rule on April 30.

The Court of Appeals noted the uncertainty created by the two district court decisions, and the possibility that the NLRB may yet appeal parts of the D.C. district court’s decision.  The Court found the NLRB’s opposition to postponing the April 30 deadline “in some tension” with the NLRB’s earlier postponements during the pendency of the district court proceedings.  In the end, the Court ruled that “[t]he uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.”

The Court’s order set an expedited briefing schedule on the pending appeal from the D.C. district court’s order.  The last reply brief is not due until June 29, 2012, and the Court directed its clerk “to calendar this case for oral argument on an appropriate date in September 2012.”  A decision would likely follow shortly thereafter.  For employers, this means that even if the NLRB were to prevail in this appeal, it is unlikely that it could implement the notice posting rule until September or October at the earliest.

We will continue to monitor this case and the NLRB’s response to it, as well as the numerous other challenges to the Board’s quorum and authority, and provide further guidance as appropriate.  As we explained in our most recent alert, we are awaiting a district court decision challenging the Board’s quickie election rules. 

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