Court Grants Injunction on NLRB Posting Rule

From Denise Gold Associate General Counsel AGC of America April 17 2012:

In the continually changing saga of the National Labor Relations Board’s new regulation to require most private-sector employers to post certain notices informing employees of their rights under the National Labor Relations Board the very latest development is that the U.S. Court of Appeals for the District of Columbia today granted an injunction pending appeal of a legal challenge to the rule brought by the Coalition for a Democratic Workplace of which AGC is a member and co-plaintiffs. With oral argument on the merits of the appeal not set until September this effectively means that the Board may not enforce the April 30 effective date of the rule. The regulation will not go into effect – and employers need not post the poster – until fall at the very earliest if at all. The rule could become permanently invalidated by the court or rescinded by the Board.

For further clarification this latest development should not be confused with a decision by a U.S. District Court in South Carolina issued last Friday. That court ruled that the Board’s regulation was invalid but its decision reached only statewide. Today’s decision relates to an appeal in a separate challenge to the rule brought in a different district where the district court in DC ruled earlier that the posting mandate portion of the regulation is valid but the penalty provisions are not. The present decision enjoining implementation of the regulation applies nationwide.

These cases and the Board’s regulation also should not be confused with a similar but separate regulation by the Department of Labor requiring federal contractors to post a similar notice of employee rights. That rule remains in effect.