Today, the U.S. Court of Appeals for the District of Columbia issued an emergency injunction, enjoining the NLRB’s rule requiring employers to place a poster in their workplaces. The poster requirement was scheduled to go into effect on April 30, 2012. Today’s Order follows the lower court’s March 2, 2012 decision, which invalidated the enforcement mechanisms and penalties that were prescribed for violations under the rule. In the April 17 Order, the Court of Appeals denied a request from the NLRB to permit the rule to take effect while the court system continued to review the legality of requiring the post- ing. In denying the NLRB’s request, the Court determined that the uncertainty surrounding the legality of such enforcement necessitated postponement of the rule. The April 17 Order is aligned with an April 13, 2012 order from a District Court Judge for the District of South Carolina, which invalidated the poster in its entirety and determined that the NLRB overstepped its authority.
The decision represents a significant win for employers as they are not required to post the NLRB’s employee rights poster in their workplaces at this time. This most recent determination is the fourth time the poster requirement has been delayed. The Court’s April 17 Order granting the emergency injunction set oral argument on the matter for September 2012 (which means the Court will not decide whether this posting will be required until sometime after September 2012).
Employers should also be aware that the NLRB’s new union election rules are currently scheduled to go into effect on April 30, 2012. The United States Chamber of Commerce and the Coalition for a Democratic Workforce are currently challenging these new election rules because they decrease the amount of time for the election period and eliminate current safeguards that prevent employees from rushing into an election uninformed and unfamiliar with the process. The same judge from the District of Columbia that validated the NLRB’s poster requirement is deciding whether these new rules are legally enforceable.
As both the poster requirement and new union election procedures work their way through the court system, this recent activity by NLRB highlights the importance of training managers to legally respond to union organizing efforts. Employers that are educated on these issues are able to legally and efficiently address these issues with their employees. Additionally, employers with good employment practices are far less likely to be subject to union organizing drives led by unengaged or disgruntled employees.
If you have any questions regarding this Law Facts or any other employment or labor law question, please contact the authors of this LawFacts or any Seaton, Peters & Revnew attorney at (952) 896- 1700.