Challenge of NLRB Posting Rule Continues

Despite the District Court's partial upholding of the NLRB Posting Rule, there is further uncertainty regarding the rule after the National Association of Manufacturers filed an appeal and emergency motion for an injunction seeking to enjoin the rule from going into effect on April 30, 2012. As we have previously reported, the District Court's March 2, 2012 decision upheld the basic posting requirement but rejected the rule's unfair labor practice and equitable tolling provisions as unenforceable. Following the District Court's decision, the National Association of Manufacturers almost immediately filed a motion for an injunction pending appeal that was denied by the District Court on March 7, 2012. The National Association of Manufacturers then filed a notice of appeal with the Court of Appeals on March 8, 2012 and an emergency motion for injunctive relief on March 12, 2012 seeking to stop the rule from going into effect. In its appeal, the National Association of Manufacturers argues that the District Court's decision is inconsistent as the Court held that the rule's unfair labor practice and equitable tolling provisions are unenforceable but left open the possibility for the Board to find that a failure to post would constitute an unfair labor practice on an individual basis. The Court of Appeals has not yet ruled on the National Association of Manufacturers' emergency motion. Employers should prepare to post the NLRB notice of employee rights (which can be downloaded at www.nlrb.gov/poster by April 30, 2012). We will continue to monitor the outcome of the litigation. If you have any questions about the posting requirement, contact Patrick McGovern, Esq. or John Vreeland, Esq. in our Labor Law Practice Group.