On Monday, March 5, the Coalition for a Democratic Workplace, the National Federation of Independent Business (NFIB) and the National Association of Manufacturers (NAM) filed a notice of appeal with the Court of Appeals for the District of Columbia challenging the district court's ruling upholding, in part, the National Labor Relations Board's notice posting rule.
In the order issued on Friday, March 2 in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), District Court Judge Amy Berman Jackson held both the NLRB had authority to issue a rule requiring private-sector employers to post notices informing employees of their rights under the Act, and that the NLRB could consider an employer's "knowing and willful" failure to post the notice as evidence of an unlawful motive. However, she struck down the portions of the NLRB's rule that would automatically deem an employer's failure to post the notice an unfair labor practice and that would toll the statute of limitations for unfair labor practice charges filed against employers that failed to post the notice.
That same day, Judge Jackson issued a separate decision in the case declining to entertain the plaintiffs' separate motions related to President Obama's more recent "recess appointments" to the Board. Judge Jackson declined to rule substantively on the motion deeming the alleged recess appointments a "political dispute" not at issue in the litigation.
The groups appealing Judge Jackson's rulings stated that they are appealing the March 2 orders on the basis that the NLRB does not have rulemaking authority, their First Amendment claims, and their challenge to the alleged recess appointments.
Because employers must comply with the NLRB's notice posting rule by April 30, the plaintiffs in the case also filed a request with the district court seeking an injunction prohibiting the NLRB from enforcing the rule while the plaintiffs' appeal is pending.
Meanwhile, the U.S. Chamber of Commerce's lawsuit against the NLRB, Chamber of Commerce of the United States v. NLRB, Case No. 2:11-cv-02516-DCN (D.S.C.), also challenging the NLRB's notice posting rule remains pending in federal court in South Carolina. Both the Chamber and the NLRB have filed motions for summary judgment and are awaiting a ruling.