New NLRB Election and Posting Rules, Effective April 2012 (Not)

The National Labor Relations Board (NLRB) recently adopted two final regulations, one requiring a workplace poster and the other speeding up the union election process.

The National Labor Relations Board (NLRB) recently adopted two final regulations, one imposing a workplace poster requirement and the other speeding up the process for holding representation elections. Both rules have been the source of plenty of controversy, and both are now the subjects of legal proceedings. They were scheduled to go into effect on April 30, 2012, but neither has, following courtroom battles.

Posting requirement. The poster rule would require employers to post a workplace notice informing employees of their right to form a union. It has been challenged by, among others, the Chamber of Commerce, which claims that the posting obligation violates employers' rights under the First Amendment. Supporters of the requirement argue that the Board's intent is simply to notify employees of their legal rights, like currently required posters on discrimination, workplace safety, and the minimum wage. In 2012, the U.S. Court of Appeals for the D.C. Circuit struck down the posting rule and enjoined the NLRB from enforcing it.

Election rules. The final regulation that changes the procedures for union elections has been the source of heated debate. The rules are intended to speed up election proceedings by, among other things, limiting the legal challenges an employer may bring before the election is held and giving the officers who hear such pre-election challenges greater discretion to streamline the proceedings by restricting the issues to be heard and limiting written briefs. The NLRB's statement on these changes indicate that they will promote efficiency, because certain issues employers previously had the right to raise before an election was held could be mooted by the outcome of the election, if the union loses. The NLRB voluntarily suspended the election rules just days after they went into effect, following a decision by a federal district court that the NLRB did not have the authority to pass the rules.

Like almost everything else the NLRB does these days, these regulatory changes were closely scrutinized and heavily criticized. Now that the NLRB is once again at full strength (as of July 2013), it remains to be seen whether the newly constituted Board will take up these rules again and renew its efforts to put them into effect, either as originally written or in modified form. Stay tuned.