Workplace FYI - Inside Washington & Beyond – What Employers Need to Know

Because of Monday’s court decision favoring the Chamber of Commerce in its challenge to the National Labor Relations Board (NLRB)’s new election rules, the NLRB has “temporarily suspended” the rules and withdrawn its instructions on the implementation of these representation case process changes that were effective on April 30. (link).   See U.S. Chamber of Commerce et al. v. National Labor Relations Board, No. 11-cv-2282 (D.D.C. May 14, 2012).

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There was a new development today in the litigation concerning the NLRB’s posting requirement.  As we previously reported, a federal district court in South Carolina ruled on April 13 in Chamber of Commerce v. NLRB that the Board had exceeded its statutory authority in requiring employers to post notices of employees’ rights under the National Labor Relations Act.  That ruling was in conflict with the decision of the District Court for the District of Columbia in National Association of Manufacturers v. NLRB, now pending on appeal before the Court of Appeals for the D.C. Circuit.  The question of whether employers must comply with the posting requirement as of April 30, 2012, the date on which the Board’s regulation was scheduled to take effect, was answered in the negative today when the court of appeals granted an emergency injunction pending appeal.

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On December 30, the National Labor Relations Board (NLRB) will publish in the Federal Register that it is postponing its requirement that employers subject to NLRB jurisdiction post a notice informing its employees of their rights under federal labor law. It first announced this decision on December 23. This delay, until April 30, 2012, is the second time the NLRB has changed the rule’s effective date. The August 30 rule required the posting in November. The NLRB first extended the effective date to January 31, stating that additional time was needed “in order to allow for enhanced education and outreach to employers.” This extension is due to lawsuits questioning the legitimacy of the NLRB regulation.

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On August 30, the National Labor Relations Board (NLRB) will publish a new rule in the Federal Register that requires all employers to post a notice in all workplaces informing employees of their rights to form unions, bargain collectively over wages, hours, and conditions of employment; inform employees of employer unfair labor practices which they are protected from, and inform employees how to file NLRB charges. There also is brief mention of the employee right to refrain from engaging in union activity. The rule sets the size, form, and content of the notice, and advises regarding the enforcement of the rule. Here are the highlights:

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“Unprecedented!” “Frivolous!” are just two of the milder characterizations that have been hurled at the National Labor Relations Board (NLRB) in the wake of its unfair labor practice complaint against Boeing for moving work on the 787 Dreamliner to a new plant in South Carolina.  What is most surprising about those characterizations is they came from, among others, the labor law professoriate that is usually a knee-jerk supporter of the Labor Board in any union-supporting effort.  Long-time union stalwarts have noted that the NLRB’s conduct is the boldest act of its recent and expanding pro-labor activist agenda and have questioned its wisdom, if not its intent. But first, some background.

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