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Presently, a National Labor Relations Board (NLRB) final rule will require almost all private employers, unionized and non-unionized, beginning January 31, 2012, to post a notice of employee rights under the National Labor Relations Act. Specifically, the required posted notice must advise employees of their rights to engage in union organizing, bargain collectively and engage in other protected concerted activities. Failure to comply could result in an unfair labor practice charge against an employer by the NLRB. The only employers excluded from this NLRB posting rule will be railroads, airlines, agricultural employers and very small employers who conduct virtually no interstate commerce business. More information about the posting rule, including a link to the required poster may be found here.
The NLRB originally slated its posting rule, extraordinarily adopted by the Board last August, to be effective on November 14, 2011. However, faced with multiple court challenges by various business groups – including the U.S. Chamber of Commerce – as well as efforts by Congressional Republicans to overturn it, the NLRB postponed the rule's effective date to January 31, 2012.
In Washington, D.C., the National Association of Manufacturers, National Right to Work Legal Defense and Education Foundation, and National Federation of Independent Business sued the NLRB in the U.S. District Court for the District of Columbia to block the posting rule, asserting the rule exceeded the NLRB's authority and violated their First Amendment rights. Those separate suits were consolidated into one lawsuit, and the court held a hearing concerning multiple summary judgment motions on December 19. The judge has taken those motions under advisement, and a decision is expected soon.
In South Carolina, the U.S. Chamber of Commerce partnered with the South Carolina Chamber of Commerce to sue the NLRB in the U.S. District Court for the District of South Carolina. The chambers assert the posting rule violates multiple federal laws, including the NLRA, and the First Amendment by forcing employers to use their own resources to post a pro-union message on employers' own properties, in effect creating a new unfair labor practice that exposes employers to significant and costly liability for failure to comply. That court will hear arguments in this case on January 11, 2012 concerning multiple pending summary judgment motions, and a decision is expected shortly thereafter.
Finally, on November 30, 2011, the U.S. House of Representatives passed the Workforce Democracy and Fairness Act which, among other actions, would roll back the NLRB's posting rule. That bill remains up for consideration by the Senate, which has yet to act on the measure.
Employers should carefully monitor the progress of these two lawsuits, but otherwise should prepare for the January 31, 2012 implementation of the posting rule.
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