Following a South Carolina federal court’s finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Last month in a separate lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW), the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule, but struck down the rule’s enforcement provisions. The parties in the D.C. case promptly appealed the portion of the decision affirming the Board’s rule-making authority and moved to enjoin enforcement of the rule while the appeal was pending. The appellate court initially denied this motion for an injunction but reversed course in an order (pdf) issued on April 17, 2012.

The court states in the order:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits. We note also that the district court’s severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement. The Board has indicated that it may cross-appeal that aspect of the district court’s decision. The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

The order schedules oral argument in this case for September 2012. A final decision on the merits in this matter, therefore, is not expected until the fall of 2012 at the earliest.

For the time-being, employers do not have to post the NLRB notice, and the April 30 deadline is no longer in effect for the posting. The existing posting requirement for federal contractors, however, remains in effect. That said, the cases are still subject to final disposition by the courts of appeals, and even possibly the U.S. Supreme Court, which will have the final word on whether the NLRB can make employers post a notice or not. We will continue to monitor this issue for developments.

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