Legal Updates

NLRB Abandons Poster Requirement But Revives Fight For Union-Friendly Election Rules

After more than two years of legal wrangling, the National Labor Relations Board (“NLRB” or “Board”) has conceded defeat in its court battles to enforce its rule requiring employers to post a workplace notice informing employees of their rights under the National Labor Relations Act (“NLRA”).  The NLRB opted not to ask the U.S. Supreme Court to review two recent decisions by federal appeals courts striking down the notice-posting rule, and the Board has indicated that it will not make further efforts to try to enforce the rule.  However, the Board has just revived its fight to implement expedited election procedures to facilitate union organizing, signaling that it continues to pursue a pro-union agenda.

The Notice-Posting Rule

The Board’s notice-posting rule, which was issued in August 2011, would have required most private-sector employers to post a notice in their workplaces summarizing employees’ rights under the NLRA, including the right to be represented by a union for purposes of collective bargaining.  In addition, the rule would have made it an unfair labor practice for an employer to fail to post the notice.  Finally, the rule provided that throughout any time period in which an employer failed to post the notice, the six-month statute of limitations applicable to unfair labor practice charges would be suspended.

Court Challenges To Rule

Shortly after the NLRB issued the notice-posting rule, employer groups challenged it in the U.S. District Court for the District of Columbia and the U.S. District Court for the District of South Carolina.  The District of Columbia court struck down certain portions of the rule, while the South Carolina court invalidated it entirely.  Both rulings were appealed, and the NLRB announced that it would delay implementation of the rule while the legal proceedings continued.

Eventually, in 2013, the appeals were decided by the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the Fourth Circuit.  Both of these federal appeals courts struck down the notice-posting rule.  The D.C. Circuit concluded that (i) the rule violated employers’ free-speech protections under Section 8(c) of the NLRA, and (ii) the Board did not have authority under the NLRA to suspend the statute of limitations for unfair labor practice charges.  The Fourth Circuit held that the Board lacked statutory authority to promulgate the rule in the first place.

NLRB Abandons The Notice-Posting Fight…

The Board declined to seek U.S. Supreme Court review of both decisions.  In a statement posted on its website, the Board explained that, despite its decision, “employers are free to voluntarily post the notice, if they wish.”  The agency added that it would continue to pursue other means of promoting its “national outreach program to educate the American public” about the NLRA.

The NLRB’s decision to abandon its notice-posting rule is certainly good news for employers.  Posting the notice may have sparked union organizing campaigns or encouraged challenges to management policies.  In this regard, under the Obama Board, non-unionized employees have successfully challenged employer policies relating to such matters as confidentiality and social media on the basis that they improperly restrict employees’ rights to engage in concerted activity.

Unfortunately, the Board’s decision to walk away from the notice-posting rule provides no reprieve for federal contractors and subcontractors.  These employers still must post a similar workplace notice about employees’ NLRA rights pursuant to presidential Executive Order 13496 and the U.S. Department of Labor’s implementing regulations.  Although employer groups have filed a court challenge to that requirement as well, it remains in place for now.

…But Revives The Fight Over Election Rules

As this Update was going to press, the NLRB revived its efforts to change its election rules to facilitate unionization.  On February 5, 2014, the Board announced new proposed rules to expedite union representation elections.  The Board had proposed substantively identical rules in June 2011 and then decided to adopt certain of the proposed rules in December 2011.  However, this action was invalidated by a federal district court on the ground that the Board did not have a valid quorum when the rule was promulgated.  The Board now has a full slate of members, so the quorum issue is no longer an impediment.

The proposed election rules, among other things, would require employers to furnish employee telephone numbers and email addresses to unions as part of the election process.  They also would prevent employers from challenging alleged campaign improprieties by the union until after the election takes place.

If the proposed election rules are adopted by the Board after the required period of public notice and comment – as is expected – then they will almost certainly be challenged in court by employer organizations.  However, if the Board withstands the anticipated legal challenges this time around, then unions’ chances of prevailing in workplace elections will be substantially bolstered.

Recommendations

While the Board has given up the ghost on its effort to require private-sector employers to post a workplace notice of employee rights under the NLRA, the Board (i) continues to encourage employees to challenge management policies perceived as prohibiting “concerted activity,” and (ii) is moving ahead aggressively to implement new election rules that would facilitate union organization.  Accordingly, we encourage employers, in consultation with experienced labor counsel, to take the following steps:

• Review workplace policies and practices to determine whether they comply with the Board’s present view of employee rights under the NLRA, particularly with regard to “concerted activity”;
• Train supervisors, managers, and human resources personnel in how to recognize and respond appropriately to possible union organizing activity; and
• Continue to monitor NLRB decisions, announcements, and actions closely.

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Please feel free to contact us if you have any questions about these issues or need assistance with any other labor-law matters.  We regularly assist employers in all aspects of labor law and would be happy to help.