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NLRB Posting Rule Challenged


Note:  Since this article was written, the NLRB’s Notice-Posting Rule was placed on hold.  Employers are NOT required to post the notice of NLRA rights on April 30, 2012. Click HERE for more information.

NLRBThe National Labor Relations Board (NLRB) has issued a Final Rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA).  The rule mandates, among other things, that employers post an 11 x 17 inch notice in conspicuous places where they are readily seen by employees.  Employers must also post the required notice on an intranet or internet site if personnel policies and rules are customarily posted there.  The rule was to take effect on November 14, 2011, but the NLRB recently postponed the effective date to January 31, 2012, to allow for further education and outreach.  Click here for a client alert that describes the rule in more detail. Click here for a link to the required poster.  

The ink is barely dry on the rule, and already several legal challenges have been mounted.  On September 19, the United States and South Carolina Chambers of Commerce filed a lawsuit in federal court in South Carolina seeking an injunction to prevent the NLRB from enforcing the rule.  In the lawsuit, the Chambers claim, among other things, that the NLRB lacks statutory authority to impose the posting and other requirements contained in the rule, that the NLRB’s actions were arbitrary and capricious and that the posting requirement constitutes “compelled speech,” in violation of the First Amendment.  Similar lawsuits have been filed by the National Association of Manufacturers, and the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business.  There is also legislation pending in Congress, the “Employee Workplace Freedom Act” which would rescind the rule.

The NLRB’s new notice posting requirement is just one example of the agency’s recent controversial pro-labor maneuvers.  In July, the NLRB issued a notice of proposed rulemaking concerning new rules that would, among other things, shorten the length of time between the filing of a representation petition and an election (so-called “quickie elections”). https://www.nlrb.gov/news/board-proposes-rules-reform-pre-and-post-election-representation-case-procedures    This move was anticipated in the wake of EFCA’s failed passage, and it is drawing strong opposition.  Trade groups have blasted the maneuver, and Senator DeMint (R-SC) filed a bill in July (S-1425) that would legislatively prohibit quickie elections. http://www.govtrack.us/congress/bill.xpd?bill=s112-1425

The NLRB has also been under attack in Congress recently as a result of the agency’s aggressive and well-publicized litigation against Boeing. Recall that the NLRB filed ULP Charges against Boeing earlier this year in connection with the company’s decision to open a non-union plant in South Carolina, which is a right to work state.   http://www.nlrb.gov/boeing-complaint-fact-sheet   On September 21st the Senate Appropriations Committee voted on a proposed amendment to the fiscal year 2012 Labor-HHS-Education Appropriations bill that would have prohibited the NLRB from ordering an employer to close, relocate, or transfer employment as a remedy for an unfair labor practice (i.e., the type of remedies potentially at issue in the Boeing case).  The vote resulted in a tie (15-15), and so passage of the amendment failed. http://www.businessweek.com/ap/financialnews/D9PT7VA83.htm

There will no doubt be much more to report in the weeks and months ahead as the NLRB continues to flex its muscles.  Stay tuned.  In the meantime, consider that now is a good time to educate managers and supervisors about NLRA do’s and don’ts, and union avoidance strategies.  And don’t forget the best union avoidance strategy of them all:  Maintain a positive, respectful workplace where morale is high, employees have a voice, and employees do not feel the need to turn to a union or the NLRB.  There is an old adage which says that employees don’t vote for a union they vote against their employer.  You have the power to ensure that your business remains union-free.

As for notice posting, the NLRB’s new rule will go into effect on January 31st.  The new rule will stand unless and until the Courts or Congress do something to block it, which seems unlikely in the short-run.  Employers need to be ready to comply.


By:  Catherine E. Reuben and Peter J. Moser

If you have any questions about the information above, please contact Peter J. Moser or Catherine E. Reuben directly or fill out this form and we will contact you.


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