NLRB Update: Notice Posting and Election Rule Changes Officially Dead


Notice Posting Requirement Fight Abandoned: On January 6, 2014, the NLRB announced it will not seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the Board’s Notice Posting Rule.

As we reported in alerts issued August 30, 2011, October 6, 2011, January 4, 2012, March 6, 2012, April 18, 2012, May 16, 2012, and May 9, 2013 the Board issued a requirement that virtually all employers post a notice of employees’ rights under the National Labor Relations Act (the Act) in 2011. Both the Court of Appeals for the District of Columbia and the Fourth Circuit later invalidated the posting requirement under the First Amendment. The Board said it will use its own website and free mobile app to distribute information on employees’ rights under the Act. 

Election Rules Changes Also Rescinded: Similarly, the NLRB also rescinded its 2011 changes to representation election rules in a final rule issued on January 22, 2014,. The election rule changes had already been struck down by the U.S. District Court for the District of Columbia because the Board lacked a quorum when the rules were passed. The Board appealed the decision, but withdrew its appeal in December 2013. The 2011 changes were never implemented due to the Court challenges, so the current election rules will remain in place.

Senate Confirms Board Members: On August 12, 2013, four new NLRB members, Nancy Schiffer, Harry I. Johnson, III, Kent Hirozawa, and Phillip A. Miscimarra, were confirmed by the U.S. Senate. They will join NLRB Chairman Mark Gaston Pearce (whose re-appointment was confirmed in July 2013) in comprising the first fully Senate-confirmed Board since 2003. 

The confirmations ended the uncertainty surrounding the validity of decisions released while the Board was filled with recess appointments. Since 2003, recess appointments by President Bush and President Obama have led to legal challenges. The Noel Canning case pending before the United State Supreme Court is challenging a President’s ability to make recess appointments to the Board. Further, in 2010, the Supreme Court found that the NLRB acted without a quorum in issuing over 600 decisions with only two members.

While the withdrawal of the appeal on the Notice Posting and elections rules change rescission are welcome news to employers, employers should be aware that new rules and regulations from the confirmed Board are likely forthcoming. As always, we will follow the Board’s actions and keep you informed. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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