NLRB Poster Rule Suspended Pending Further Review by the Judicial Branch
April 30 was scheduled to be the effective date for two noteworthy National Labor Relations Board (NLRB) rulemakings. But few things are ever settled in Washington.
On Tuesday, April 17, the U.S. Court of Appeals for the District of Columbia (the Court) suspended the implementation of an NLRB rule that would require nearly all non-profit and private-sector employers to display a National Labor Relations Act (NLRA) employee rights poster by April 30, pending further review. The Court will hear the case on appeal from the district court which ruled that the National Labor Relations Board (NLRB) has the authority to require employers to post a notice, but that they exceeded their authority in two ways—by deeming failure to post an unfair labor practice and tolling the statute of limitations for claims brought by employees against employers that failed to post the notice. In a related but separate challenge to the NLRB posting rule, a federal district court in South Carolina struck down the notice posting requirement ruling that the NLRB lacked the statutory authority to require employers to post the notice.
The D.C. Appeals Court injunction is the third extension of the NLRA posting rule’s effective date. Originally scheduled for November 2011, it has been previously delayed until both January 2012 and April 2012.
The NLRB’s final rule on union election procedures, also known as the “quick election” or “ambush election” rule, is still slated to become effective on April 30, 2012. The rule intends to shorten the period prior to union representation elections primarily by limiting the issues considered at the pre-election hearing stage.
However, key members of Congress are looking to repeal the rulemaking. Former HR professional and SHRM member Sen. Mike Enzi (R-WY) and Rep. Phil Gingrey (R-GA), pictured above, are sponsoring Senate Joint Resolution 36 and House Joint Resolution 103, respectively. The resolutions are based on the Congressional Review Act of 1996 (CRA), which allows the Senate and House to consider a joint resolution of disapproval compelling a federal agency from implementing a rule or regulation. It is expected the Senate will likely vote on the resolution before the end of April.
SHRM supports the Enzi/Gingrey resolutions to ensure employees have adequate time to consider the ramifications of voting either for or against union representation. SHRM will keep you updated as further NLRB developments warrant prior to the April 30 effective date for the rule.
Note: The quickie election rule, along with the NLRA posting rule and other actions by the NLRB, were topics discussed in depth during the concurrent sessions conducted during last month's Employment Law and Legislative Conference. If you were unable to attend, try out SHRM 'On Demand' today to view these session, while earning up to 20 re-certification credit hours. Just access