Why wait for the NLRB to do something when you can rely on a Court instead?

Two days ago, we posted a piece you’ll find right below this one which reported on a decision from a federal district court in South Carolina last Friday which held that the National Labor Relations Board exceeded its authority in requiring that employers post a notice starting on April 30, 2012, advising employees of their rights to unionize under the National Labor Relations Act.

Of course, since that ruling just so happened to be the opposite of one issued by a federal district court in Washington, D.C. a mere six weeks earlier, there was some confusion as to whether employers were, in fact, required to post that notice on April 30, 2012; and the hope was that the Board would thereafter step up to the plate, do the right thing, acknowledge the seeming inconsistency in application of federal labor policy after both court decisions, and at least temporarily suspend the posting requirement until the legal actions ran their course.

With word starting to surface that the Board may very well have intended to continue on with enforcement of the rule in all other jurisdictions besides South Carolina, employers everywhere found relief yesterday in the form of an injunction issued by the District of Columbia Federal Circuit Court of Appeals, stopping the Board from requiring employers everywhere to post the notice on April 30 pending resolution of the appeal in the D.C. case taken by the National Association of Manufacturers (and others). 

While we contemplate changing the name of this forum from “Employment Essentials” to “What’s Next With The NLRB”, employers finally seem to have gained at least a little traction on this issue, with the D.C. Circuit Court of Appeals almost questioning the Board’s motives in the 2-page Order it issued yesterday granting the injunction.

In its Order, the Court noted – and was obviously not pleased – that, during the pendency of the case before the federal District Court in Washington D.C, the Board willingly postponed the date of the posting requirement’s implementation until the legal action could run its course, but on appeal, took a different position and was not willing to do similarly again and suspend implementation of the mandate.  The D.C. Circuit Court of Appeals also found important the fact that the District Court below did find invalid several of the enforcement mechanisms over the posting rule which the Board also intended to implement at the same time, even if it found the posting requirement itself was valid and didn’t exceed the Board’s authority. 

From our point of view, perhaps the most interesting – but not talked about – aspect of the Circuit Court’s Order was the fact that, in granting injunctive relief, the Court basically concluded that the parties challenging the enforcement of the requirement demonstrated, among other things, a likelihood of success on the merits of its appeal.  That is one of four prerequisites that a party seeking an injunction must establish, and in granting that relief in this case, the Circuit Court of Appeals indicated that all four were satisfied.  A copy of the order in its entirety from the D.C. Circuit Court of Appeals can be found here.

The D.C. Circuit Court of Appeals established an “expedited” scheduled to hear the appeal, but because it won’t be presented for oral argument until September, 2012, the posting requirement is likely to remain enjoined and not something employers need to go through with (if at all) until that time at least.  Unless, of course, something changes in the meantime, and as anyone who reads this blog regularly knows, almost nothing is certain when it involves predicting what may happen next with the NLRB. 

What is certain, however, is that the Employment Essentials blog team will continue to keep all of our readers up to speed on this very critical issue in the months to come.  Stay tuned.


Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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