*By Patrick J. Hoban
This morning, the Federal Circuit Court for the District of Columbia issued an injunction which prevents the National Labor Relations Board (“NLRB”) from enforcing its rule requiring Employers to post the NLRB-mandated “Employee Rights” notice by April 30, 2012. The injunction means that employers do not have to post the NLRB Employee Rights notice by April 30. Z&R discussed the posting requirement and its implications for employers in previous alerts: October 2011, September 2011 and August 2011.
In March, 2012, in response to a challenge by two employer organizations, the Federal District Court for the District of Columbia, ruled that the NLRB was authorized to compel private employers to post notices informing employees of their rights under the National Labor Relations Act (“NLRA”) – including their right to form a union and file unfair labor practice charges. See Nat’l Assoc. of Manufacturers v. Nat’l Labor Relations Bd., et al., No. 1:11-cv-01629-ABJ (D.C. Sept. 8, 2011) The employer groups appealed the decision to the D.C. Circuit Court of Appeals and filed a Motion to Stay enforcement of the rule pending appeal. The NLRB opposed this motion; however, the Circuit Court issued the requested injunction this morning. The Court of Appeals’ injunction recognizes the “uncertainty about enforcement” of the rule and requires preserving the “status quo” (i.e., no notice posting requirement) pending resolution of the challenges to the rule on appeal. The Circuit Court has scheduled oral arguments in the case for September 2012 which means that employers will not be required to post the “Employee Rights” notice until the Court issues its decision sometime after that.
In another challenge to the posting rule brought by the U.S. Chamber of Commerce, on Friday, April 13, 2012, the United States District Court in Charleston, South Carolina rejected the NLRB’s argument that the posting requirement was “necessary” to carry out the mission of the NLRA. Further, Judge Norton also rejected the NLRB’s argument that Congress had delegated authority to the NLRB to order the posting of these notices. The Court held that the NLRB lacked authority to issue the posting rule, that, as a result, the rule was unlawful and granted summary judgment to the U.S. Chamber of Commerce. Chamber of Commerce of the United States, et al. v. National Labor Relations Board, et al., No. 2:11-cv-02516-DCN (D.S.C. Apr. 13, 2012). This decision rendered the posting rule unenforceable in the State of South Carolina, but left the NLRB free to enforce it in other parts of the country. However, today’s injunction from the D.C. Circuit Court prohibits the NLRB from enforcing the rule anywhere.
The ultimate fate of the “Employee Rights” poster remains unclear and may ultimately rest with the U.S. Supreme Court. Z&R will keep you updated on any changes in the posting requirement.
Election Rule Amendments Take Effect April 30
The election rule amendments, passed in December, 2011, reduce the time between the filing of a union election petition and an election by virtually eliminating pre-election litigation. As a result, employers will have less time to present the case against unionization to their employees and rebut union propagandizing that has been underway for months. The new election rules drastically undermine an employer’s ability to defend itself and its employees against a union organizing campaign. (See our previous alert discussing the amendments in more detail).
If you have not updated your employee handbook or workplace policies in light of these NLRB rules changes, you should do so immediately. Specifically, your confidentiality, social media, code of conduct, non-harassment, related investigations, discipline, electronic communications and solicitation/distribution polices should be reviewed and revised to ensure that they comply with the NLRA and give you the tools to counter union organizing in your workplace. If you have any questions about the posting requirement, the election rules changes, revising your employee handbook to comply with the NLRA, contact Pat Hoban at 216-696-4441 or pjh@zrlaw.com.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the NLRB’s election amendments, NLRB’s posting requirement, or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
