NRMCA Provides Update on Recent Federal Labor Board Actions

The National Labor Relation Board’s (NLRB) "poster" regulation – which would have required employers to post biased notices of employees’ rights to organize under the National Labor Relations Act – is dead. In August 2013, the U.S. Court of Appeals for the Fourth Circuit denied a rehearing of its decision that the NLRB lacked statutory authority to promulgate the regulation. The U.S. Court of Appeals for the District of Columbia then dismissed the Board’s petition to review its previous decision which held that the regulation violated employers’ free speech rights. After being rejected by two courts, the Board did not ask the U.S. Supreme Court to review either case before the January 2 deadline. This ends both the litigation over the rule and, ultimately, the rule itself.

Also, on January 13 the U.S. Supreme Court heard arguments in National Labor Relations Board v. Noel Canning. The case challenges the constitutionality of the president’s recess appointments to the Federal Labor Relations Board. In January 2012, the president appointed three NLRB members while the Senate was in a pro-forma session. NLRB needs a 3-member quorum to function and the three appointments were deemed unconstitutional by the D.C. Circuit. The decision in the case will be issued later this summer. NRMCA will continue to follow this as it develops and report on the impacts.

NLRB is issuing a final rule that overturns the "snap elections" rule which would have substantially shortened the time period between the filing of a petition for a union-representation election and when the election is held. The rule was challenged in Chamber of Commerce of the U.S. v. NLRB and struck down in May 2012 on the grounds that the Board lacked a quorum when it issued the final rule. The final rule, set to be published on January 22, reestablishes the previous regulatory language. Read the Federal Register Notice here.