It’s official. The National Labor Relations Board’s (“NLRB”) much-publicized Notice-Posting Rule, scheduled to go into effect at the end of this month, has been shelved indefinitely pending the result of federal court litigation challenging the rule. The final blow came on April 17, when the United States Court of Appeals for the District of Columbia Circuit issued an injunction prohibiting the Board from implementing the rule while the court “resolves all of the issues on the merits.”
The court also ordered an expedited schedule for filing of briefs and oral argument. Briefs are to be filed by the end of June, and oral argument will be scheduled sometime in September. Faced with the Court of Appeals’ injunction, as well as last week’s decision by the South Carolina District Court that the rule is unlawful in its entirety, the NLRB stated the following:
“In light of conflicting decisions at the district court level, the D.C. Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.
“In view of the D.C. Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”
What This Means for Employers
For the foreseeable future, employers will not be required to post the NLRB’s notice. However, the other NLRB rules scheduled to take effect on April 30—the “quickie” (or “ambush”) election rules— are not affected by this action and can be expected to be in full force on April 30. As discussed in our E-flash dated December 20, 2011, these rules will drastically shorten the time between the filing of an election petition and the date of the election. Employers should, accordingly, bear in mind that once a union petition is filed, they will have very little time to provide their employees with the information necessary to cast an informed ballot.