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NLRB Notice of Employee Rights Poster Delayed Again

4/18/12

On Tuesday, April 17, 2012, in response to an April 13, 2012 S.C. Federal Circuit Courts decision that the NLRB rule requiring all employers to post a Notice of Employee Rights exceeded the NLRBs authority, a three judge panel in the D.C. Circuit Court of Appeals placed an injunction on the enforcement of the NLRB posting rule while the issue is decided by the Court of Appeals. In March, a D.C. Federal Circuit Court had ruled that the NLRB did have the authority to promulgate the rule but could not enforce the penalty provisions included in the rule. The D.C. Circuit Court of Appeals noted that in light of the fact that two federal circuit courts issued conflicting rulings, the uncertainty of enforcement counsels further in favor of temporarily preserving the status quo After the injunction was issued, the NLRB issued a press release responding that it believes it was within its authority to promulgate the rule; however, in light of the courts decision it has directed its regional offices not to implement the rule while the appeal is pending. The injunction is not for a definite time and is only in effect while the appeal is pending. Oral arguments will be held in the D.C. Circuit Court of Appeals in September and a decision should be issued shortly thereafter. In the meantime, the requirement to post the NLRB notice is temporarily stayed.

Thomas A. Dixon, tadixon@eastmansmith.com, 419-247-1616

Sarah E. Pawlicki, sepawlicki@eastmansmith.com, 219-247-1701

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