On April 17, 2012, the District of Columbia Circuit Court of Appeals issued an emergency injunction preventing enforcement of the National Labor Relation Board’s (the NLRB) notice posting rule. National Association of Manufacturers v. NLRB, (D.C. Cir. Case No. 12-5068). In entering the injunction, the Court of Appeals noted that the NLRB had previously delayed enforcement of its Notice Posting Rule during the pendency of District Court proceedings below and that this action undercut the Board’s contention that an injunction was inappropriate. The U.S. District Court for the District of Columbia had struck down part of the NLRB's Notice Posting Rule, but upheld the Board's authority to promulgate and require posting of the Notice. The Court of Appeals stated that given the District Court’s ruling that part of the notice posting rule was invalid, and the Board’s stated intention to appeal that part of the decision, the uncertainty regarding enforcement counseled in favor of an injunction. As a result, the NLRB’s notice posting order, which was scheduled to go into effect on April 30, 2012, is stayed until the Court resolves the merits of the case. Oral argument in the case will not take place until September of this year at the earliest.

The Court of Appeals decision follows quickly on the heels of a District Court decision in a different case that struck down the entire notice posting order. Chamber of Commerce v. NLRB, (DSC, Case No. No. 2:11-cv-02516-DCN). In that case, Judge David C. Norton ruled that NLRB’s final rule requiring the posting of a general notice informing employees of certain rights under the National Labor Relations Act (the NLRA), exceeded the statutory rights of the NLRB, violated the Administrative Procedure Act and, thus, was unlawful. The final rule has been under fire since it was issued in August of 2011. The rule requires businesses to post an 11 x 17 notice alerting workers to their Section 7 (of the NLRA) rights, including the right to organize and join a union. The rule also requires businesses that use the Internet or an intranet site to post human resources-related information to post the NLRB notice on those sites as well.

In his decision, Judge Norton found that Section 6 of the NLRA, which confers rulemaking authority on the NLRB, only allows the NLRB to make rules and regulations “as may be necessary to carry out the provisions of the [NLRA].” He further found that, though possibly helpful, the posting requirement was not necessary for the NLRB to carry out the provisions of the NLRA. In reaching that determination, Judge Norton analyzed the congressional intent behind the NLRA, specifically Section 6, and did not find anything either in the statute itself or in the legislative history pointing to an intent to give the NLRB the authority to promulgate the notice posting requirement.

The continuing litigation surrounding the Notice Posting Rule suggests that employers continue to stay on alert for any changes regarding this controversial and hotly contested rule. Any concerns about the rule and the implications of this ruling should be discussed with experienced counsel.