The United States Court of Appeals for the District of Columbia Circuit has enjoined the NLRB's rule requiring the posting of employees' rights, which had been scheduled to take effect April 30, 2012, until after the determination of an appeal of a District Court decision upholding the rule. The appeal is currently scheduled to be argued during September 2012 and the stay will remain in effect until a decision is rendered. In response to the Order, the NLRB has advised all of its regional offices that the posting rule is not to be enforced. It is anticipated that the posting rule will not be implemented during the entire appeal process.
The case arose from the NLRB's promulgation of a hotly contested rule requiring all covered employers to post notices to their employees informing them of their rights under the National Labor Relations Act. The NLRB prepared a poster that would meet this notice requirement, which sets forth employee rights (including organizing, forming, joining or assisting a union or choosing not to do so), a list of prohibited employer actions, a list of prohibited Union actions, and contact information for the NLRB.
The rule also contains an enforcement section. That section makes failure to post the notice an unfair labor practice. More critically, it provides that the NLRB will extend the six-month statute of limitations in cases where the employer fails to post the notice and will also view such a failure as evidence of an unlawful motive in cases where motive is an issue.
Two United States District Court lawsuits were filed, one in the District of Columbia and one in South Carolina, and in both cases cross-motions for summary judgment were filed. As a result of the filing of these lawsuits, the NLRB had twice postponed the effective date of the rule pending issuance of the decisions.
The two courts recently issued their decisions – the District of Columbia on March 2, 2012, and South Carolina on April 13, 2012. The District of Columbia court found that the NLRB had the authority to issue the posting rule under its statutory power to make "such rules and regulations as may be necessary to carry out the provisions of" the NLRA, but struck down the enforcement section of the rule. The South Carolina court, on the other hand, found that the NLRB lacks the power to issue the posting rule and struck it in its entirety. The D.C. Court of Appeals then enjoined enforcement of the posting rule pending its decision on appeal, specifically citing the South Carolina decision as a basis for the injunction.
Employers are now anxiously awaiting a decision on this appeal (as well as the anticipated appeal of the South Carolina decision to the Fourth Circuit). In the interim, given the NLRB's statement, all employers can hold off on the NLRB posting for now.