On April 17, 2012, the U.S. Court of Appeals for the District of Columbia Circuit granted an emergency motion and enjoined the National Labor Relations Board from implementing and enforcing its August 30, 2011, final rule mandating that all employers subject to the jurisdiction of the National Labor Relations Act post Notices of Employee Rights by April 30, 2012. The federal appeals court will schedule further oral argument for a September 2012 date yet to be determined. Effectively, any future decision will be delayed until late fall.
The D.C. Circuit Court’s order follows the April 13, 2012, decision of the U.S. District Court for the District of South Carolina striking down the Board’s rule in its entirety. In that case, Judge Norton held the Board exceeded its authority in promulgating the Rule and declared it invalid. Previously, on March 2, 2012, Judge Jackson of the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule but stuck down the rule’s enforcement mechanisms which would find the failure to post the Notice an unfair labor practice and toll the statute of limitations for filing unfair labor practice charges.
The rule was proposed on December 22, 2010. Following public comment, the final rule was published August 30, 2011, to be effective November 14, 2011. However, on October 5, 2011, the Board announced that to allow additional time “for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses,” the effective date was postponed to January 31, 2012. Then, on December 23, 2011, acknowledging the pending challenge before the U.S. District Court for the District of Columbia, the Board again postponed the effective date until April 30, 2012.
It is significant that the posting date has again been delayed. We strongly recommend that no poster be displayed until this legal challenge to the Board’s authority is resolved. We will keep you apprised of further developments as they occur. Please consult your Nixon Peabody attorney with any further questions.