April 17, 2012, the D.C. Circuit Court, the appellate court for the D.C. District Court, entered an injunction temporarily prohibiting the National Labor Relations Board (the NLRB) from enforcing its rule requiring employers to post a notice regarding their employees’ rights to unionize (the Poster Rule). The D.C. Circuit Court reasoned that an injunction was required to allow the D.C. Circuit Court to consider whether the NLRB has the authority to issue the Poster Rule. It appears that the earliest date that employers will have to comply with the Poster Rule is sometime in September 2012.
The D.C. Circuit Court’s injunction temporarily prohibiting the NLRB from enforcing the Poster Rule comes four days after the District Court of South Carolina struck down the Poster Rule. The District Court of South Carolina reasoned that the Poster Rule was unenforceable because the NLRB lacked the authority to require employers to post the NLRB notice absent a congressional mandate. The District of South Carolina’s reasoning is at odds with the D.C. District Court’s ruling finding that the NRLB has the authority to issue and enforce the Poster Rule. The D.C. District Court’s ruling was appealed to the D.C. Circuit Court, which led to the injunction prohibiting the NLRB from enforcing the Poster Rule until the D.C. Circuit Court is able to rule on the appeal.
Employers are not required to post the NLRB notice regarding employee rights to unionize under the NLRA until further notice. Employers should be aware that the Poster Rule could become effective as early as September 2012 under the D.C. Circuit Court’s current schedule.© MICHAEL BEST & FRIEDRICH LLP