The United States District Court, District of Columbia, issued an opinion on March 2, 2012, partially invalidating the National Labor Relations Board’s (NLRB) new posting requirement, which is to go into effect on April 30, 2012. The NLRB’s new posting requirement was discussed in detail in our September 13, 2011 Employment and Labor Relations Update, New Posting Rules Pose Additional Risks for Employers.
Specifically, the Court ordered that the NLRB and the other named defendants are permanently enjoined from implementing and enforcing: (1) Section 104.210 of the Final Rule, which provides that “[f]ailure to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by” the National Labor Relations Act; and (2) Section 104.214(a) of the Final Rule, which provides that, if an employee files an unfair labor practice charge, the Board “may find it appropriate” to excuse the employee from the normal requirement that an unfair labor practice charge be filed within six months after the allegedly unlawful conduct occurred. A copy of the Court's Memorandum Opinion is available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1629-59.
Thus, although the Plaintiffs successfully challenged some of the Final Rule’s provisions, the Court upheld the remaining provisions of the Final Rule and presently, the NLRB’s posting requirement is still set to go into effect on April 30, 2012. Stay tuned, however, as the Plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the District of Columbia Circuit on March 5, 2012 appealing the District Court’s order which allows the Final Rule to go into effect.