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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

NLRB Posting Rule III: Posting Rule Enforcement Enjoined

Posted in Judicial Review & Remedies

Seth Borden, McKenna Long & Aldridge, at Labor Relations Today, reported that the U.S. Court  of Appeals for the D.C. Circuit today enjoined enforcement of the NLRB Posting Rule.  This blog previously discussed the NLRB Posting Rule litigation when the District Court for the District of Columbia invalidated the enforcement provisions of the rule and when the District Court for South Carolina found the posting rule exceeded the NLRB’s authority.

The appellate panel’s injunction ends some of the “uncertainty about enforcement” and indicates that the D.C. Circuit panel may attempt to “resolve[] all of the issues on the merits.  The panel’s injunction does not resolve all such uncertainty, as the NLRB may appeal the order of the District Court for South Carolina to the Fourth Circuit and thereby may attempt to create a circuit conflict.  The panel also ordered expedition of the briefing and argument process.

UPDATE:  Seth Borden further reports that the NLRB has announced that NLRB “regional offices will not implement the rule pending the resolution of the issues before the court.”  Still short of a nationwide injunction, at least the NLRB has realized the uniformity of application is needed.  It is not clear whether the NLRB has issued its own stay of the rule under the Administrative Procedure Act (APA).