NLRB Poster Rule Enjoined

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In the ever-changing tug-of-war between the National Labor Relations Board ("NLRB" or the "Board") and employers, two recent court decisions have called into question the NLRB's August 2011 final rule ("the Rule"), which would have required most private sector employers to post a notice, by April 30, 2012, advising employees of their rights under the National Labor Relation, Act ("the Act"). The NLRB is the federal government's administrative agency that coniders unfair labor practices and employee rights under the Act. The posting Rule has caused a firestorm of business protests.

As a result of the differing opinions by federal trial courts for the D.C. Circuit and for South Carolina, the NLRB has been enjoined (effective April 17, 2012) to suspend its Rule set for implementation on April 30th. The Board announced the injunction on its website.

Important note: In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temperaly enjoined the NLRB's rule requiring the posting of employee rights under the National Labor Relations Act, which had been scheduled to take effect on April 30, 2012. In March, the D.C. District Court found that the agency had the authority to issue the rule. In April, the South Carolina District Court found that the agency did not. The agency will appeal the South Carolina decision.

Regional offices will not implement the rule pending the resolution of the issues before the court. http://www.nlrb.gov/poster . Thus, given the injunction, the Rule will not currently affect employers, at least until the matter is fully determined in the courts.

Employers should keep an eye out for the posting decision, which ultimately may require Supreme Court review.

If the Rule is upheld, it will be the first ime that the Board will force employers to display a poster about employee NLRA right . The NLRB determined that the reason for this "Notice Posting Rule" was the belief at many employees are unaware of their rights under the Act and therefore cannot effectively exercise those rights. In response, employers have argued, led by the U. S. Chamber of Commerce, that the Board was without the authority to issue this kind of rule.

The posting, if it is finally allowed, will require that more than six million employers inform workers of their right to join a union and act together to improve wages and working conditions. It also informs employees of their right not to join a union, but opponents have argued that the countervailing expression is buried in the proposed poster. Business groups have complained the poster is an unfair government effort to promote union organizing.

How might the posting decision affect Texas, a largely non-union state, if it is later approved by the courts?

Texas along with 21 other states has 'right to work" laws that ban union security agreements. In other words, this kind of Iaw protects employees from threats, force, intimidation, or coercion for choosing to either participate or not participate in a union. One might argue that the Rule seems in conflict, to some extent, with Texas' law, which is designed to make union membership (or not) a neutral employee issue.

There are also concerns that the Board's current actions may threaten Texas' strong job growth. The latest BLS statistic indicate that Texas leads the nation for highest rate of job growth between 2004 and 2011. In order to sustain this growth, recommendations were made during the State of Texas' 82nd Session, (when considering Interim Charges Relating to 8 Business and Commerce), to (A) study approaches to licensing and regulation of occupations to ensure protection of public welfare, trust, health and safety and to (B) eliminate unnecessay overly restrictive or anti-competitive regulations. One may argue that recent NLRB actions have been in conflict with these latter goals, posing challenges for future job growth in Texas.

Business interests have argued that the posting requirement is but one example of the current Board acting in a "rogue" and aggressively anti-business manner. During the present administration, the NLRB's actions have been labeled by some as "overly restrictive" and "anti-competitive."

For example, in addition to the posting Rule, another hotly debated Board action has involved its lawsuit against Boeing Cqmpany. In 2010, The Boeing Company announced its intentions to expand its Dremliner 787 production in South Carolina. The NLRB declared that Boeing's move was in retaliation for strikes by unionized workers at its existing facilities in Washington State, and, consequently, the Board's General Counsel sued Boeing. At the end of the day, Boeing created new jobs in South Carolina as well as increasing positions in its Washington plant. Then, when a new union contract was signed in late 2011, e NLRB charges against Boeing were dropped, though after many months of outcry across the country.

Finally, there have been other questions raised about the Board and its constituency- whether it has had a proper quorum, at times, and whether the current membership, made up of three appointees named by President Obama during an early 2012 disputed Senate "recess," should have been formally approved by the Senate.

In short, the Board's actions during the current administration have been questioned by many businesses. Thus, man American businesses, including those in Texas, must remain vigilant of Board action . Additionally, Texas legislators should also be alert to any changes coming from the NLRB that could potentially impact Texas' continued progress in job creation or could result in conflicts with the State's "right to work" law.

Whether the posting Rule ultimate! is permitted we have to await. In the interim, all employers must be vigilant of oard action and court review of same.

Authors: Liz Castle and Andrea Johnson