A three-judge panel of the D.C. Circuit of Appeals has issued an injunction against implementation of the National Labor Relations Board’s notice posting rule. Following earlier postponement by the Board, the rule was set to go into effect at the end of this month. Instead, the D.C. Circuit Court has enjoined the rule pending appeal of the District Court decision in National Association of Manufacturers, et al., v. National Labor Relations Board, 1:11-cv-01629-ABJ.
The appellate panel referenced last week’s decision in Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN, Order (D.S.C. Apr. 13, 2012), which conflicted, in part, with the lower D.C. decision in holding the Board lacked authority to promulgate the notice-posting rule. In enjoining the rule, the Court of Appeals reasoned further:
We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits. We note also that the district court’s severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement. The Board has indicated that it may cross-appeal that aspect of the district court’s decision. The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.
The appeal is to be expedited, with briefs submitted in May and June, and oral argument set during September 2012. It would seem employers throughout the U.S. have at least a temporary reprieve from the Board’s posting requirement.