By: Ronald J. Kramer
On Tuesday, April 17, 2012, the United States Court of Appeals for the District of Columbia Circuit stayed the implementation of the National Labor Relations Board’s rule requiring employers to post notices in the workplace regarding employees’ rights to unionize. The stay will remain in effect until the D.C. Circuit Court resolves the pending appeal in NAM v NLRB, 2012 WL 691535 (D.D.C. Mar 2, 2012), wherein a D.C. District Court upheld the Board’s ability to require notices be posted. This order comes just days after a United States District Court for the District of South Carolina struck down the Board’s posting rule in Chamber of Commerce of the United States v. NLRB, 2:11-cv-02516-DCN (D.S.C. Apr. 13, 2012). That case no doubt also will be appealed.
Absent the stay, the posting rule had been scheduled to take effect April 30, 2012. The NLRB, which had postponed the implementation of the posting rule during the NAM district court proceedings, opposed the emergency motion for the injunction pending appeal. In granting the motion, the Circuit Court noted that the Board’s position was at odds with its prior postponement, and also that the uncertainty about the enforcement of the rule in light of the Chamber of Commerce decision counseled further in favor of preserving the status quo during the appeal.
The order resolves the uncertainty as to whether and where the Board’s posting rules would have been effective in light of conflicting district court decisions as to its legality. The stay will likely remain in effect for most if not all of 2012, as oral argument in NAM is not to be scheduled until September.
While employers need not post the notices for now, whether the appellate courts, if not ultimately the U.S. Supreme Court, will decide in the NLRB’s favor is still much in doubt.