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Implementation of NLRB Workers' Rights Posting Rule Delayed by Federal Appeals Court

  • April 17, 2012

The National Labor Relations Board’s rule that requires all employers covered by the National Labor Relations Act to post a notice informing workers of their rights under the Act will not go into effect on April 30th after all.  An emergency injunction was granted by the U.S. Court of Appeals for the District of Columbia Circuit in National Association of Manufacturers v. NLRB, No. 12-5068, on April 17.  The Court also ordered expedited briefing and oral argument in September 2012.  This means that the rule will not go into operation, if at all, until the fall.

The NLRB regulation requires that all employers covered by the NLRA conspicuously post a notice informing employees of their right to organize and engage in other protected activities and provides contact information for the NLRB.

In granting the emergency injunction, the Court rejected the NLRB’s argument that the rule should take effect during the pendency of an appeal from a district court ruling upholding the posting requirement.  It noted that the Board in December 2011 had voluntarily postponed for  three months (from January 31, 2012, to April 30, 2012) implementation of the rule during the district court proceedings to give that court an opportunity to consider the legal merits of the dispute.  Moreover, “the uncertainty about enforcement counsels further in favor of temporarily preserving the status quo” while the Court “resolves all of the issues on the merits,” it stressed.

The appeal before the D.C. Circuit is from a March 2 decision of Judge Amy Berman Jackson. Judge Jackson held the NLRB had the authority to promulgate the posting rule, though she found some remedial provisions exceeded the Board’s authority.  (For more information on that decision, see our article, Judge Finds NLRB Workers’ Rights Posting Requirement Lawful, But Strikes ULP and Tolling Provisions.)  A second federal district court judge has held to the contrary in Chamber of Commerce v. NLRB, No. 11-cv-2516 (D.S.C. Apr. 13, 2012).  Chief Judge David C. Norton found the NLRB did not have the authority to promulgate the rule.  (For more information on that decision, see our article, NLRB Workers’ Rights Posting Requirement is Unlawful, Federal Judge in SC Holds.)

The D.C. Circuit’s injunction does not affect a requirement under Executive Order 13496 that covered federal contractors and subcontractors post a notice informing employees of the right to unionize and to engage in certain protected activities under the NLRA.  The Executive Order is not based on the Board’s statutory authority.  Therefore, employers who have chosen to participate in covered federal contracts remain obligated to post the Department of Labor-generated notice of rights pursuant to the terms of the Executive Order.  (For more information, see our article, DOL Final Regulations on Contractors' Obligation to Notify Employees of Organizing Rights (EO 13496), or Special Report: DOL Final Regulations on Contractors’ Obligation to Notify Employees of Organizing Rights (EO 13496).)

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