Unions & Labor Law Reform Blog : Unions Lawyer & Attorney : Jackson Lewis Law Firm : Employee Free Choice Act, Collective Bargaining

As predicted, the National Labor Relations Board has published a final rule amending its union election process.  The “quickie election” rule, which the Board rushed to finalize before the end of the year, will significantly change the process for contesting petitions for union elections and limit an employer's opportunities to challenge the process before an election is held.  It also will limit an employer’s opportunity to communicate with its employees over issues of union representation before a vote is taken.  The rule is scheduled to take effect on April 30, 2012. 

For details of the rule, see our article, Quickie Election Rule Finalized Before Year End.

In addition, as we reported on December 20, Judge Amy Berman Jackson during oral argument in the challenge to the NLRB Notice Posting Rule pending in U.S. District Court for the District of Columbia said the case is a complicated one, and she asked the Board to postpone the effective date of the Rule beyond January 31, 2012, because she needs more time to deal with the issues.  The Board in response to the Judge's request announced today that “it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012."

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Judge Amy Berman Jackson yesterday heard oral argument in the challenge to the NLRB Notice Posting Rule pending in U.S. District Court for the District of Columbia.  The Rule requires employers to post a notice in the workplace that informs employees of their right to organize, provides contact information for the NLRB, and lists a litany of unlawful employer conduct.  (More information about the Rule is available at the NLRB website.)  While it is unwise to predict the outcome of litigation based upon a judge’s reaction and questioning during oral argument, one thing is clear: Judge Jackson believes the case is a complicated one.  She asked the Board to postpone the effective date of the Rule beyond January 31, 2012, as currently scheduled, because she needs more time to deal with the issues. 

Argument in a similar action pending in the U.S. District Court in South Carolina will not take place until January 11, 2012.

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The National Labor Relations Board has just announced it has postponed the effective date of its new rule mandating the workplace posting of an official Notice of Employee Rights under the National Labor Relations Act. The rule had been scheduled to go into effect on November 14th. Now, the rule will be effective on January 31, 2012.

The NLRB’s stated reason for the postponement is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The Board cited confusion over which business fall within the jurisdiction of the statute. Unlike many other employment laws, coverage does not depend on a minimum number of employees, but the extent to which a company engages in interstate commerce. The thresholds, generally expressed in terms of gross volume of business for different industries, are very low. Almost all private sector employers are subject to the Act.

The Board states that “[n]o other changes in the rule, or in the form or content of the notice, will be made."

Keep reading this blog for updates, or feel free to contact us for more details.

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The NLRB has advised the public that all employers covered by the National Labor Relations Act (generally all private sector employers) will be required to post a notification of employees’ rights by November 14, 2011. The Board’s August 25th press release, which contains links to the Final Rule and additional information, is reprinted below. The issuance of the Final Rule follows a notice and comment period in which employers generally called such a posting unnecessary and misleading.

The National Labor Relations Board has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website. 

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws.

Board Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Craig Becker approved the final rule, with Member Brian Hayes dissenting.

The rule will be published in the Federal Register tomorrow, and will take effect 75 days later. A fact sheet with further information about the rule is available here.
 

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