eTrends - NLRB Posting Rule Enjoined by Federal Circuit Court

The NLRB's posting rule which was scheduled to go into effect on April 30, 2012 has been enjoined by the U.S. Court of Appeals for the District of Columbia pending appeal of National Association of Manufacturers v. NLRB. The injunction was issued on April 17th and is expected to last at least until this Fall when that court will hear oral arguments in the appeal. The injunction follows a decision last week by a federal district court in South Carolina ruling in Chamber of Commerce v. NLRB that the NLRB lacked statutory authority to issue the rule. The NLRB is expected to appeal that ruling to the Fourth Circuit Court of Appeals.

This injunction means that private employers covered by the NLRA will not be required to post the NLRB poster on April 30th. Virtually all private employers regardless of whether or not they have a union are covered by the NLRA. Importantly, however, this injunction does not relieve covered federal contractors or subcontractors from the Executive Order 13496 requirement that they post a similar notice informing employees of the right to unionize and to engage in certain protected activities under the NLRA. That posting requirement has been in effect since July 2010. See July 16, 2010 eTrends. Additionally, the injunction does not affect the NLRB quickie election rule scheduled to go into effect on April 30th. The quickie election rule will reduce the period of time in which employers have to educate their employees about the consequences of voting for union representation and significantly changes best practices for non-union employers who desire to remain union-free.

While employers covered by the NLRB posting rule will not have to post the notice on April 30th and should notify their supervisors and managers of this development, efforts to train supervisors and managers on union organizing rights and the employer's efforts to maintain a union-free work environment should continue so as to ensure that they are prepared for defeating union organizing in a quickie election world.

Please contact Susan Parrott with any questions.

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Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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