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Drinker Biddle & Reath LLP.
Labor & Employment Practice Group

Labor & Employment Alert  | April 2012

Federal Appeals Court Issues Injunction Against NLRB Employee Rights Posting Rule

Today, the U. S. Court of Appeals for the District of Columbia issued an injunction that prevents the National Labor Relations Board (Board) from enforcing its rule that requires employers to post an Employee Rights poster. The posting requirement was scheduled to take effect on April 30, 2012.

The Court granted the emergency motion filed by the National Association of Manufacturers requesting an injunction while the Court reviewed a decision issued by the U.S. District Court for the District of Columbia. The district court upheld part of the Board's posting rule, but invalided other parts. The district court ruled that, under the National Labor Relations Act (Act), the Board had the authority to require covered employers to post the Employee Rights poster, but did not have the authority to make the failure to do so a violation of the Act. The district court also ruled that the Board could not toll the six-month statute of limitations on the filing of unfair labor practice charges because of an employer's failure to post.

Last Friday, April 13, 2012, the U.S. District Court for the District of South Carolina struck down the Board's posting rule in its entirety, finding that the Board did not have the authority under the Act to issue a regulation mandating that employers post the notice of employee rights. In issuing its injunction, the Court noted the South Carolina district court's decision.

The injunction will stand until the Court resolves all of the issues in this case on the merits, which is expected to occur sometime this fall.