DC Circuit Temporarily Enjoins NLRB Rule Requiring Posting of Notice of Right to Join Union

On Tuesday, April 17, 2012, the U.S. Court of Appeals for the District of Columbia Circuit entered an emergency injunction against enforcement of the National Labor Relations Board’s Final Rule entitled “Notification of Employee Rights Under the National Labor Relations Act.” National Association of Manufacturers v. National Labor Relations Board, No. 1:11-cv-01629-ABJ (D.C. Cir. Apr. 17, 2012). The rule, which was scheduled to enter into effect on April 30, 2012, would require employers subject to the National Labor Relations Act to post on their premises an NLRB-prescribed notice containing the following statement:

Under the NLRA, you have the right to:

  • Organize a union to negotiate with your employer concerning your wages,hours, and other terms and conditions of employment.
  • Form, join or assist a union.
  • Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
  • Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
  • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
  • Strike and picket, depending on the purpose or means of the strike or the picketing.
  • Chose not to do

Several groups representing employers have challenged the legal authority of the NLRB to issue the notice-posting requirement. On March 2, 2012, the U.S. District Court for the District of Columbia partially upheld the NLRB’s rule. National Association of Manufacturers v. National Labor Relations Board, No. 11-1629 (ABJ) (D. D.C. Mar. 2, 2012). However, last week, a federal court in South Carolina found that, in promulgating the final rule, the NLRB exceeded its authority in violation of the Administrative Procedure Act. Chamber of Commerce of the United States v. National Labor Relations Board, No. 2:11-cv-02516-DCN (D. S.C. April 13, 2012).

The D.C. Circuit’s emergency injunction is a measure intended to preserve the status quo pending a full appeal, and is not a ruling on the merits.

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