Written by: Evan Rosen

As we have previously reported on this blog, the National Labor Relations Board (the “Board”) issued a highly controversial rule requiring private employers to post a notice informing employees of their right to join or form a union.  Implementation of the rule has been postponed several times, but was finally set to go into effect on April 30, 2012.

Thankfully, the courts have once again intervened to provide a respite to employers.  Today, the D.C. Circuit Court enjoined implementation of the rule pending an appeal in the underlying case brought against the Board by several trade associations.  In the underlying case, the D.C. District Court held that the Board had the authority to promulgate the rule, but struck down two of the rule’s enforcement measures.  That decision is currently being appealed.  In today’s order, the D.C. Circuit enjoined implementation of the rule until the appeal is decided.  Oral argument for the appeal will be held in September 2012, so the earliest the rule will go into effect is the fall of 2012, if at all.

The D.C. Circuit’s order comes on the heels of a decision issued yesterday, in which he held that the Board did not have authority to promulgate the rule at all.   Judge Norton’s decision puts the validity of the rule – not just its enforcement – in question.  Interestingly, the D.C. Circuit cited Judge Norton’s decision in their order granting the injunction, leaving us to wonder whether that is a harbinger of how the D.C. Circuit views the Board’s authority to promulgate the rule.

While these developments are good news, employers must remain vigilant to protect against union organizing, especially in light of the Board’s new election rules that are going into effect next month.  Management training and other defensive measures should be implemented as expeditiously as possible.

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