November 26, 2014

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November 26, 2014

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Mandatory Posting Date for NLRB's Notice of Unionization Rights Remains in Effect

Federal Court Partially Upholds Notice Rule and April 30 Posting Deadline

On March 2, 2012, a D.C. federal court ruled that the National Labor Relations Board (NLRB) can require all employers subject to the NLRB's jurisdiction to post a notice of Employee Rights, including the right to unionize. Business groups that filed the challenge, including the National Association of Manufacturers, the Coalition for a Democratic Workplace, the National Federation of Independent Business and the National Right to Work Legal Defense and Education Foundation, have appealed the ruling and requested an injunction pending appeal to stay implementation of the new rule. The district court denied the request but, to date, the D.C. Circuit Court of Appeals has not ruled on the injunction request.

As previously reported, the original date for the required posting was November 14, 2011, which the NLRB delayed twice and is now set for April 30, 2012.

The district court cut back on the impact of the rule, finding that the NLRB exceeded its authority by including provisions that permitted the NLRB to deem an employer's failure to post the notice both an automatic unfair labor practice and a waiver of the statute of limitations for certain unfair labor practice charges, although the court recognized that the NLRB could find a failure to post an unfair labor practice in an individual case.

The challenging business groups have argued to the D.C. Circuit that the district court's decision leaves employers "no guidance at all" as to when a failure to post constitutes an unfair labor practice. The NLRB maintains that the district court was correct in upholding its authority to issue its rule, and it has reserved its option, "in due course," to challenge the court's restrictions on its enforcement provisions.

A separate challenge to the NLRB's rule by the U.S. and South Carolina Chambers of Commerce remains pending in the South Carolina federal district court.

Absent a court order or another voluntary delay by the NLRB, all employers subject to the jurisdiction of the NLRB, which includes most private sector employers, must post the notice by April 30, 2012. Federal contractors and subcontractors are also covered, but will be deemed in compliance if they have already posted the similar notice of employee rights required by Executive Order 13496.

Copies of the poster and specific information on the posting requirements, including the number, size, location(s), media and languages of the required notice, are available at http://www.nlrb.gov/poster.

As we previously reported, also set to go into effect on April 30, 2012, are the NLRB’s revised election rules which change the time and procedures for employers to respond to union election petitions.

In a separate development, the NLRB has also recently announced that it will be providing additional information to nonunion employees about their rights on its website.

© 2014 Bracewell & Giuliani LLP

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Counsel

John A. Ferguson Jr. advises employers on all aspects of traditional labor and employment law, and has developed a specific litigation capability in defending employers before state and federal courts, state and federal administrative agencies, in hearings, arbitrations and collective bargaining. Client representation includes issues of workers’ compensation retaliation, the National Labor Relations Association (NLRA), Texas Labor Code, Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), and...

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Nancy O'Connor represents client interests in compliance and dispute management in general commercial employment settings. She has conducted numerous internal investigations. An experienced negotiator, she manages both collective bargaining and individual executive employment compensation matters and provides guidance on labor-related issues in corporate transactional matters. She is particularly familiar with employment issues in the hospitality, academic, telecommunications, federal procurement, security and energy industries. 

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