Wednesday, April 18, 2012

Federal Court of Appeals Blocks NLRB’s Notice Posting Rule, But New Election Rules Take Effect on April 30

To post or not to post?  Employers now have a temporary answer. The D.C. Circuit Court of Appeals has issued an order blocking implementation by the National Labor Relations Board of its announced rule requiring private employers to post a Notice of Collective Bargaining Rights by April 30. We have previously written (click for The Modern Workplace and Employment Edge) about the Notice posting rule. Now employers will not be required to post the Notice until at least some time later this fall. This does not affect in any way the underlying collective bargaining rights that were the subject of the Notice. Nor does the ruling change the effective date of the NLRB’s new rule for union organizing elections, which remains April 30.

This will not be the end of the Notice posting issue. In an April 17 press release, NLRB Chairman Mark Gaston Pearce said, “We continue to believe that requiring employers to post this Notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”

In its press release the NLRB stated it would not implement the rule pending the resolution of the issues before the D.C. District Court, which will not occur until late this year. The NLRB also noted that it plans various appeals in its efforts to resolve the status of the Notice rule.  

Many employers and their advocates have expressed concern that the Notice posting requirement might lead to increased union organizing activity. This concern is now less immediate, but the NLRB’s new election rules that become effective at the end of April could also have a tendency to increase unions’ organizing success rates. 

To prepare for the new election rules, employers wishing to avoid unionization may be wise to take proactive steps to improve their positioning in the event of union activity in the workplace, such as ensuring that supervisors are clearly identified and empowered with the kind of authority the NLRB will recognize as sufficient to keep them out of any unit that a union attempts to organize.

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