On April 17, 2012, the United States Court of Appeals for the District of Columbia Circuit issued an emergency injunction preventing the National Labor Relations Board from enforcing its notice-posting rule while the court considers an appeal filed by the National Association of Manufacturers in National Association of Manufacturers, et al. v. National Labor Relations Board, et al., Case No. 12-5068 (D.C. Cir. 2012).
The National Association of Manufacturers appealed the District Court of the District of Columbia’s ruling that the Board has the authority to issue administrative rules and that the notice-posting rule was a permissible exercise of that authority. However, the district court also invalidated the Board’s primary enforcement mechanisms for violation of the rule. The National Association of Manufacturers asked the Court of Appeals to enjoin, or delay, the effective date of the notice-posting rule until after the Court’s ruling on the appeal. The Board opposed postponing the effective date of the notice-posting rule.
In granting the injunction, the D.C. Circuit Court of Appeals noted the Board’s opposition “is in some tension with” the fact the Board delayed the rule’s effective date during the district court’s proceedings to provide the district court the opportunity to consider the legal merits before the rule took effect. The Court of Appeals also cited a recent ruling by a South Carolina federal district court that invalidated the notice-posting rule and found that the Board lacks the authority to promulgate the rule. See Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN, Order (D.S.C. Apr. 13, 2012).
The injunction and postponement of the notice-posting rule is expected to remain in effect until at least September 2012, when the Court of Appeals is scheduled to hear oral argument in the National Association of Manufacturers case.
– Wilson Eaton