On April 17, 2012, the D.C. Circuit Court of Appeals enjoined the National Labor Relations Board (“NLRB”) from enforcing its notice posting rule (the “Rule”). The Rule was set to go into effect on April 30, 2012. The D.C. Circuit Court enjoined the Rule pending appeal of a federal D.C. district court’s split decision upholding part of the Rule that requires most private sector employers to post a notice of employee rights under the National Labor Relations Act (“NLRA”), but rejecting the primary enforcement mechanisms of the Rule that that would create a new unfair labor practice for failure to post the notice and would permit the NLRB to toll the statute of limitations for any unfair labor practice charge against an employer who failed to comply with the Rule’s posting requirements. See National Association of Manufacturers, et al. v. National Labor Relations Board, 1:11-cv-01629-AJB. Thus, pending a decision on appeal, Minnesota employers can refrain from posting the NLRB notice.

In its order, the D.C. Circuit Court also referenced a recent decision on April 13, 2012 by a federal district court in South Carolina, which held that the NLRB lacked authority to even promulgate the Rule. See Chamber of Commerce v. National Labor Relations Board, 2:11-cv-02516-DCN. This South Carolina decision conflicts with the federal D.C. district court’s decision that upheld the NLRB’s authority to promulgate the Rule. The conflict amongst the two lower federal courts, the NLRB’s argument that the Rule should take effect during the pendency of the appeal, and the uncertainty about the NLRB’s ability to enforce the Rule tipped the scales in favor of the D.C. Circuit Court to grant the injunction while the court resolves all of the issues on the merits.

The appeal is to be expedited, with briefs to be completed by the end of June 2012. Oral argument will be set for an appropriate date in September 2012. Until a decision is reached by the D.C. Circuit Court, Minnesota employers are not required to post the NLRB notice.

For a quick summary of the requirements of the Rule, please see our January 1, 2012 article NLRB Requires Private Employers to Notify Right to Unionize by April 30, 2012.

If your company would like further guidance on the NLRB’s notice posting rules and other employment law matters, contact one of the Trepanier MacGillis Battina P.A. employment law attorneys.

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Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota. Their employment law attorneys can be reached at 612.455.0500.