The legal drama continues in the saga of the new posting requirement regulations promulgated by the National Labor Relations Board ("NLRB"). In March, we reported that a federal judge for the U.S. District Court for the District of Columbia upheld the NLRB's power to require both union and union-free employers to post notice of employees' rights under the National Labor Relations Act ("NLRA"). As discussed in our initial report of the new regulation, the posting requirement purported to apply to those employers that fall within the jurisdiction of the NLRA. This ruling upholding the NLRB's posting regulation was immediately appealed to the United States Court of Appeals for the District of Columbia Circuit, and a motion was filed seeking an emergency injunction to block the posting requirement pending the outcome of the appeal. On Tuesday, April 17, 2012, the Appeals Court granted the motion, and issued an injunction against the NLRB, ordering that the posting requirement may not go into effect while the appeal is pending. Based on this ruling, the regulation's previous effective date of April 30, 2012, has been indefinitely postponed, and employers will not be required to abide by the notice posting regulation by that date.
This ruling is a victory for employers and the organizations fighting the NLRB in its attempts to test the limits of its statutory authority, and follows on the heels of a similar ruling in South Carolina. On April 13, 2012, the U.S. District Court for the District of South Carolina ruled that the NLRB had overstepped the authority granted to it by Congress in promulgating the new posting requirement. The NLRB appealed that decision, and announced its intention to fight the appeal in the District of Columbia. While the tide appears to be turning against the validity of the posting requirement, the battle is likely far from over. We will continue to keep you informed of developments.