CLIENT ALERT: D.C. Circuit Court of Appeals Block’s NLRB Posting Requirement
By Nick A. Nykulak
On April 17, 2012, the D.C. Circuit Court of Appeals enjoined the National Labor Relations Board (“NLRB”), from implementing its new posting rule on employers subject to the National Labor Relations Act (“NLRA”), while the merits of the case are pending before the Court. Previously, the NLRB agreed to postpone the implementation of this posting rule from November 14, 2011 to January 31, 2012, and then to April 30, 2012, because of pending legal actions.
The NLRB’s posting rule is designed to inform employees of their rights under the NLRA, describes various unfair labor practices and includes information on how to file unfair labor practice charges with the NLRB. An employer’s failure to post the notice as required by the NLRB would constitute an unfair labor practice charge.
The D.C. Circuit Court of Appeals set a briefing schedule and oral arguments for September of 2012. Thus, the implementation of the NLRB’s posting rule should be enjoined until at least September of 2012, provided the D.C. Circuit upholds the NLRB’s posting requirement as lawful. The NLRB has confirmed that its Regional Offices will not seek to implement the posting rule pending the resolution of the case.
Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia had decided that the NLRB had the authority to mandate the posting under its rule making authority, but at the same time, struck down the enforcement provisions of the posting rule. In other words, under the lower court’s decision, the NLRB could require employers to make the posting, but could not charge employers with an unfair labor practices if they failed to comply with the rule. The NLRB indicated to the D.C Circuit that it may appeal the portion of Judge Berman’s decision that invalidates the NLRB’s enforcement provisions for the posting rule.
On April 13, 2012, Judge David C. Norton of the U.S. District Court for the District of South Carolina struck down the NLRB’s posting rule in its entirety, holding that the NLRB exceeded its authority in violation of the Administrative Procedure Act. This conflict between the federal circuits may set up an appeal to the United States Supreme Court. It is expected that the NLRB will appeal the South Carolina decision to the Fourth Circuit Court of Appeals.