On Monday the National Labor Relations Board filed its response to the plaintiffs/appellants' Emergency Motion for Injunction Pending Appeal and/or for Expedited Consideration with the Court of Appeals for the District of Columbia in National Association of Manufacturers v. NLRB, Case No. 12-5068 (D.C. Cir.). The National Federation of Independent Business (NFIB), the National Association of Manufacturers (NAM), and National Right to Work Legal Defense and Education Foundation filed the emergency motion asking the appellate court to enjoin the National Labor Relations Board from enforcing its notice-posting rule. Under that rule, all private-sector employers subject to the National Labor Relations Act must post a notice to employees informing them of their rights under the Act. Presently, employers must comply with the rule by April 30, 2012.
In its response, the NLRB asserts that the appellants' motion should be denied because they have not demonstrated a strong likelihood of success on the merits. Specifically, the NLRB asserts that the rule was a reasonable exercise of its authority, the notice poster is balanced as it explains employees’ right to engage in union activity and their right to refrain from supporting unions, and the Board's rule was supported by the administrative record of "studies, law review articles, and comments." The NLRB also asserts that the appellants will suffer no irreparable harm if the rule is not enjoined.
However, the NLRB contends that delaying the notice posting rule further will harm other parties because "the Board has concluded that there exists a widespread deficit in awareness of NLRA rights." The NLRB argues that "[w]hile it is undeniably true that the Act has existed for 75 years without such a rule":
appellants give short shrift to the employees of those employers who are unaware of their rights under the NLRA and who for too long have been uniquely disadvantaged by the absence of any requirement that these rights be brought to their attention through the reasonable, customary means of a workplace poster.
Because employers must comply with the NLRB's notice posting rule by April 30, employers should continue to monitor this case as well as 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.), which also challenges the NLRB's notice posting rule and 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.