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NLRB Posting Rule Delayed Indefinitely

On April 17, 2012, the D.C. Circuit issued an injunction delaying the effective date of the NLRB’s Final Rule requiring most employers to post a notice of employee rights in their workplaces. The Final Rule, previously scheduled to take effect on April 30, 2012, has now been postponed indefinitely due to conflicting opinions issued by federal district courts. Judge Amy Berman Jackson of the United States District Court for the District of Columbia issued a ruling on March 2, 2012 that upheld the NLRB’s authority to enact the Final Rule but invalidated the primary enforcement mechanisms. On April 13, 2012, Judge David C. Norton of the U.S. District Court for the District of South Carolina struck down the Final Rule in its entirety in Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN. Judge Norton held that by enacting the Final Rule, the NLRB exceeded its statutory authority in violation of the Administrative Procedure Act. Judge Norton stated, “It can be said that the notice-posting rule ‘aids’ or ‘furthers’ the aspirational goals of Section 1 by notifying employees of their rights under Section 7, but defendants have not shown that the rule is ‘necessary’ to carry out any other provisions of the Act.” As a result of the conflicting opinions, the D.C. Circuit enjoined the enforcement of the Final Rule pending appeal. NLRB Chairman Mark Gaston Pearce expressed the Board’s opposition to the order but confirmed that all regional offices have been directed to comply with the injunction. The D.C. Circuit ordered an expedited briefing schedule and directed the court clerk to schedule oral argument in September.

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