by Mel Haas and Sarah Pfaff
Constangy, Brooks, and Smith, LLP
This year has the potential to be a big year of change for employers dealing with labor relations issues. There is both positive and potentially negative news for employers at this early stage, and we will update you as the year progresses.
The good news is that the NLRB’s “poster” regulation is effectively dead. This “poster” regulation would have required employers to post notices to employees of their rights under the National Labor Relations Act, which hindered employers’ rights to talk about unionization in their workplace. The NLRB sought to enforce this poster requirement by making it an unfair labor practice and evidence of an employer’s “antiunion animus” for claims before the Board. The rule was proposed by the Board in December of 2010. The final rule was posted in the Federal Register after a comments period on August 30, 2011. The rule was scheduled to take effect in April of 2012.
In August of 2013, in a case brought by the United States Chamber of Commerce, the United States Court of Appeals for the Fourth Circuit denied the Board’s petition for rehearing of its decision that the NLRB lacked statutory authority to promulgate the regulation. Likewise, in September 2013, in a separate challenge to the rule filed by Coalition for a Democratic Workplace and other groups, the U.S. Court of Appeals for the District of Colombia dismissed the Board’s petition to review its previous decision which held that the regulation violated employers’ free speech rights.
When January 2, 2014 passed so did the deadline for the Board to file its petition asking the U.S. Supreme Court to review both of these cases. The Board did not file. This puts an end to both the litigation and the rule itself.
However, with a fully confirmed Board (see What to Expect from the NLRB), the ambush election rule may be reissued in 2014 and would probably include provisions that are more problematic for employers. As you recall, the earlier proposed regulations significantly shortened the time period for an election as well as contained provisions helping unions get the unit they desired. Even more pro-union provisions could be included. The DOL’s proposed persuader regulation is scheduled to be finalized in March. The combination of these two regulations could significantly impact the employer’s ability to communicate to the employees concerning the unionization of the workplace.
If you have any concerns about your obligations under the National Labor Relations Act, please contact an experienced labor lawyer.