As you may recall, the National Labor Relations Board’s notice posting rule was previously scheduled to go into effect on November 30, 2011; however, implementation of that rule was postponed until January 31, 2012, and then again to April 30, 2012. On April 17, 2012, the U.S. Court of Appeals for the District of Columbia granted an emergency motion and issued an Order enjoining the NLRB from implementing and enforcing the rule until the Court decides whether the NLRB has the authority to do so.
The D.C. Circuit Court of Appeals’ action came on the heels of an April 13, 2012, decision of the U.S. District Court for the District of South Carolina striking down the posting rule because the NLRB had exceeded its authority in promulgating the rule. Notably, on March 2, 2012, the U.S. District for the District of Columbia upheld the NLRB’s authority to promulgate the rule but struck down the penalties that the NLRB sought to include should an employer fail to post the notice.
According to NLRB Chairman Mark Gaston Pearce (D), in light of the D.C. Circuit Court of Appeals’ Order, the NLRB regional offices have been instructed not to implement the rule until the matter is resolved by the court (http://www.nlrb.gov/print/3873). The Court of Appeals has indicated that it will hear oral arguments on the issue in September 2012, but has not yet set a definitive date. Therefore, any future decision on the notice posting rule is not expected to be issued until late fall. We will keep you apprised of any future developments concerning this ongoing saga.
Although employers have received a reprieve from the notice posting requirement, the D.C. Circuit Court of Appeals’ Order does not impact the effective date of the “quickie election” rules, which is still set for April 30, 2012. To learn how the “quickie election” rules could impact your business and what you should be doing to ensure that your company is prepared when the rules becomes effective, please contact our office and/or attend Obermayer’s Breakfast Briefing: What's Up with the NLRB in 2012, scheduled for Wednesday, April 25, 2012. Sign up at http://www.obermayer.com/breakfast-briefings-rsvp.php.
The information contained in this article should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.