A federal appeals court has barred the NLRB’s ability to require employers to post the employee rights poster while litigation over the legality of the rule continues.  

As we previously discussed, a Federal District Court in South Carolina ruled that the NLRB lacked authority to issue the rule.  This occurred after another Federal Court in the District of Columbia held that the rule was valid, but the enforcement mechanism was not.  The injunction came in the DC litigation.

Given all of the uncertainty, the DC Circuit Court of Appeals issued a Grant of Injunction Pending Appeal.pdf which effectively acts to stay the requirement pending resolution of the litigation.  The Court explained its reasoning as follows:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect.  That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of the court’s proceedings before this court has an opportunity to similarly consider the legal merits.  We note also that the district court’s severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement.  The Board has indicated that it may cross-appeal that aspect of the district court’s decision.  The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

So, for the next several months at least, employers are not required to comply with the NLRB’s posting requirement. We will keep monitoring the situation and will keep you informed here of new developments.

 

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.