D.C. Circuit Grants Emergency Injunction, Temporarily Blocking NLRB’s Poster Rule

Labor & Employment Alert



A federal appellate court blocked enforcement of a National Labor Relations Board’s rule today that required most employers to post an “employee rights” poster in their workplaces. The United States Court of Appeals for the D.C. Circuit granted a request for an emergency injunction while a challenge to the rule is pending on appeal.

The emergency injunction relieves millions of covered employers from complying with the poster rule until Fall 2012 at the earliest and struck another legal blow to the National Labor Relations Board (“NLRB”), which suffered another loss last week. The NLRB rule requires most private-sector employers to post a notice at the worksite informing employees of their rights under the National Labor Relations Act, such as the right of employees to organize a union and collectively bargain. The poster rule has faced challenges from several business groups who have argued that the rule exceeds the NLRB’s authority as granted by Congress and is biased in favor of labor unions. In response, the NLRB has argued that the poster rule helps employees understand their rights under federal labor law.

The poster rule was set to go into effect on April 30, 2012. The D.C. Circuit’s granting of the emergency injunction today temporarily postpones the notice posting requirement until the appellate court can consider whether the rule exceeds the NLRB’s authority. The appeal will take place on an expedited basis, but oral arguments will not occur until September 2012, making it uncertain about when the rule will go into effect, if at all.

The D.C. Circuit’s injunction was another setback for the NLRB regarding the poster rule. Last week, a federal judge in South Carolina ruled that the notice posting requirement exceeded the authority that Congress had granted the NLRB. The federal judge’s decision in South Carolina conflicted, however, with another federal judge’s decision in the District of Columbia where the court had ruled that the NLRB had acted within its authority.

The business groups challenging the rule appealed the D.C. district court judge’s ruling to the D.C. Circuit and requested an emergency injunction while the appeal was pending. The challengers are a coalition of business groups, including the National Association of Manufacturers and the Associated Builders and Contractors-led Coalition for a Democratic Workplace. They argued in their brief to the D.C. Circuit that the rule exceeded the NLRB’s authority and would impose the NLRB’s jurisdiction over “six million employers who have engaged in no conduct otherwise subject to the provisions of the National Labor Relations Act.”

In granting the injunction, the D.C. Circuit stated that the “status quo” needed to be “temporarily” preserved “while this court resolves all of the issues on the merits.” Those issues include whether the NLRB has authority to mandate the “employee rights” poster and potentially what penalties an employer could face if it refuses to put up such a poster.