Labor Relations Counsel

NLRB Suspends Implementation of New Representation Election Rule

Stefan Marculewicz — Tue, 15 May 2012 13:25:53 -0800

In light of yesterday’s federal court decision finding that the NLRB lacked a quorum necessary to issue the controversial new representation election rule, the Board has decided to suspend the rule’s implementation. The Board’s Acting General Counsel has similarly withdrawn guidance released last month governing the representation case procedure changes, which had taken effect on April 30, 2012.

According to the NLRB’s announcement, an estimated 150 election petitions have already been filed under the new procedures. The announcement states that “Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.”

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NMB Issues Proposed Rule Revising Representation Dispute Procedures

Ilyse Schuman — Tue, 15 May 2012 06:37:15 -0800

The National Mediation Board (NMB) has issued a proposed rule that would implement the changes to existing representation dispute and election procedures in the railway and airline industries made by the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Act). Signed into law on February 14, 2012, the FAA Act included significant restrictions over airline and railway union organizing. Specifically, the Act amended the Railway Labor Act (RLA) by: (a) specifying that the NMB must provide an opportunity for public hearing regarding any significant rules; (b) requiring that in any runoff election for which there are three or more options (including the option of “no union”) on the ballot and none receives a majority of the valid votes cast, a second election would be held between the two options receiving the most votes; (c) raising the showing of interest threshold for elections to not less than 50% (up from 35%) of the employees in the craft or class; and (d) imposing certain review and auditing requirements on the NMB’s programs and expenditures. To this end, the proposed rule published in the May 15, 2012 edition of the Federal Register would make changes to existing NMB rules regarding run-off elections, showing of interest for representation elections, and the NMB’s rulemaking proceedings to conform to the FAA Act provisions.

With respect to run-off elections, the proposed amendments to the existing regulations require that the agency no longer aggregate votes for representation and that any run-off election will be between the two ballot options – which could include a “no union” option – that receive the most votes. The amended rule also would require the NMB to arrange for a second election when no ballot option receives a majority of the ballots cast instead of requiring a participant to initiate a run-off election with a written request.

The amended language to the “showing of interest” provisions provide that a showing of interest of not less than 50% is required to support an “application requesting that an organization or individual be certified as the representative of any craft or class of employees.” The proposal notes that the changes make no mention of mergers. Under the NMB’s current merger policy, as stated in its representation manual, “[i]ncumbent organizations or individuals on the affected carrier(s) must submit evidence of representation or a showing of interest from at least thirty-five (35) percent of the employees in the craft or class.” Because the FAA Act changed the showing of interest threshold to 50%, the NMB is soliciting input “regarding the effect of the amendments on the Board’s policies and practices with respect to representation disputes in mergers.”

Comments on this proposal must be received by July 16, 2012 and identified by the agency name (NMB) and docket number (C-7034). Comments may be submitted electronically through the federal eRulemaking portal, through the agency’s web site, via email to: legal@nmb.gov (include docket number in subject line), or by fax to: (202) 692-5085. Alternatively, written comments may be sent by mail or hand delivery to: National Mediation Board, 1301 K Street, N.W., Ste. 250E, Washington, DC, 20005. In addition, the agency plans to hold a public hearing on these changes during the comment period.

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D.C. Federal Court Finds NLRB Election Rule Invalid for Lack of a Quorum

Stefan Marculewicz — Mon, 14 May 2012 16:08:15 -0800

In a long-awaited ruling, the U.S. District Court for the District of Columbia has found the National Labor Relations Board’s expedited representation election rule invalid because the Board lacked a quorum when it issued the rule in December 2011. Specifically, the court in Chamber of Commerce v. NLRB (pdf) determined that because only two of the three sitting Board members actually cast a vote to adopt the rule – Member Brian Hayes had voted against an earlier version of the rule but declined to participate in the final vote – the agency did not have the authority to act under the U.S. Supreme Court decision New Process Steel. The federal court opinion explained:

Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand.

The court noted, however, that nothing prevents the Board – which currently operates with five sitting members – from voting on the rule again. In the interim, however, “representation elections will have to continue under the old procedures.”

For the time being, based upon the Court’s decision, it would appear that the new rules, which went into effect on April 30, 2012, will no longer apply to representation cases, and the Board will have to return to the previous system. That said, it is likely this decision will be appealed.

The Board may also opt to conduct another vote on the election rules with its current composition. Pursuit of this option, however, is no guarantee that the rules would pass judicial muster under New Process Steel. As we indicated in an earlier posting, there are significant questions surrounding the legal authority of President Obama to make the three “recess” appointments he made in January of this year. Therefore, any decision made by a Board consisting of those members is subject to being overturned because it lacks a quorum.

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Defense Counsel's Deposition Questions about Employees' Union Activity Were Unlawful

Labor Management Relations Practice Group — Fri, 04 May 2012 10:16:12 -0800

By Bill Pinto

In Century Restaurant and Buffet, Inc., 22-CA-029242 (March 27, 2012), the NLRB determined that defense counsel’s deposition questions regarding employees’ union activities violated Section 8(a)(1) of the National Labor Relations Act. Employers may violate the Act even when their attorneys ask questions at a deposition that are not necessarily beyond the bounds of relevance under the Federal Rules of Civil Procedure.

Several wait staff employees met with a union representative regarding complaints about their jobs at a Chinese restaurant. Specifically, the employees were upset about side work they had to perform, tip-sharing with their manager, and having to pay for their transportation to work each day. At the time, the union did not represent the employees, but the union representative agreed to locate an attorney to help them with their wage and hour concerns. Subsequently, the three employees filed a federal lawsuit alleging violations of the Fair Labor Standards Act and the New Jersey Wage and Hour Law.

Almost two months after the federal lawsuit was filed, the union filed a representation petition seeking an election for a unit of wait staff employees. Thereafter, union representatives and the employer agreed on terms for a withdrawal of the representation petition, and the employer recognized the union as the representative of the wait staff employees. The union and the employees, however, did not agree to dismiss the federal lawsuit as one of the terms, and the parties moved forward with the lawsuit and scheduled depositions of the employee plaintiffs.

At the depositions, the restaurant’s counsel asked the employees: whether they were members of the union; when they became members of the union; whether each of the other plaintiffs were union members; whether they spoke to other union members about the litigation; whether they attended union protests on a weekly basis; and whether they had any agreements with the union related to the outcome of the litigation. The union filed an unfair labor practice charge, alleging that such questions violated the NLRA.

Pursuant to Guess?, Inc., 339 NLRB 432 (2003), the Board applies a three-part test to determine if deposition questions are unlawful: (1) whether the questions are relevant to the underlying litigation; (2) if relevant, whether the questions have an illegal objective; and (3) if relevant and without an illegal objective, whether the employer’s interest in obtaining the information outweighs the employees’ confidentiality interests under Section 7 of the Act.

The employer argued that its counsel’s questions were seeking information relevant to the defense of the lawsuit. The Board acknowledged that the Federal Rules of Civil Procedure permit a broad interpretation of “relevance,” but it determined the attorney’s questions were not relevant to the areas of inquiry the attorney claimed were important. The Board ultimately concluded that questions about whether employees were union members, when they became union members, or whether they had participated in any protests, were not relevant to the employees’ federal litigation.

Finally, regarding the third prong of Guess?, the Board found that the employees’ confidentiality interests outweighed the employer’s need to know the information concerning their union activity. Further, citing Chinese Daily News, 353 NLRB 613 (2008), the Board determined that the fact that the employees were questioned openly and with their attorneys present did not minimize the impact of the unlawful interrogation or make the questions less coercive. Thus, the Board concluded that the employer violated Section 8(a)(1) of the NLRA.

The Century Restaurant and Buffet decision reminds employers that even when they voluntarily recognize a union they may violate the NLRA by asking employees about their union activity directly or indirectly via counsel through otherwise permissible questions in a separate legal proceeding. Not surprisingly, the Board will side with protecting employees’ Section 7 rights over upholding a party’s right under procedural authority to inquire about a broad array of matters. Accordingly, when involved in litigation with employees who are members of a union, employers and their counsel should generally steer clear of questions concerning employees’ union activity or be especially confident that such a line of questioning is relevant to the litigation at hand.

Bill Would Permit Unionized Employers to Award Merit Pay

Ilyse Schuman — Tue, 01 May 2012 08:29:57 -0800

On April 26, 2012, Sen. Marco Rubio (R-FL) introduced legislation that would amend the National Labor Relations Act (NLRA) to permit employers whose workplaces are governed by collective bargaining agreements to award their employees with additional wages or other compensation for their job performance. A week earlier, Rep. Todd Rokita (R-IN) introduced the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act (H.R. 4385, S. 2371) in the House of Representatives. Continue reading this entry at Littler's Washington DC Employment Law Update.

NLRB Issues Guidance on New Election Rule

Ilyse Schuman — Thu, 26 Apr 2012 13:29:45 -0800

In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board’s Office of the General Counsel has issued guidance (pdf) on the representation case procedure changes. The Board has also released a set of frequently asked questions (FAQs) on the impact of the new election procedures. As discussed in the Board guidance, the new election rule makes the following changes to existing practices:

Stipulates that the statutory purpose of a pre-election hearing is to determine if a question concerning representation exists;
Clarifies that hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation;
Gives hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the issues to be addressed and the time for filing, subject to the authority of the regional director;
Defers most requests for Board review—with the exception of special permission to appeal—until after the election;
Eliminates the recommendation that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election;
Clarifies and narrows the circumstances under which a request for special permission to appeal to the Board will be granted; and
Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides that Board review of regional directors’ resolution of such disputes is discretionary.

To this end, the guidance memorandum sent to all regional directors and officers discusses in detail how representation cases will be processed from start to finish. These stages include the initial processing of the petition, the hearing, pre-election decisions, election preparations and elections, post-election procedures and decisions, and election certifications. The memorandum describes the limited scope of issues that the Board considers appropriate for consideration at a pre-election hearing as well as issues that may be deferred for post-election determination. Overall, hearing officers will be given a fair amount of discretion to limit the issues and evidence that can be presented and resolved pre-election in order to expedite the election process.

With respect to the role of the hearing officer pursuant to the rule revisions, the memorandum states that:

The hearing officer’s role is to ensure a complete record as to issues relevant to the existence of a question concerning representation. It is also to prevent the introduction of evidence on individual eligibility and inclusion issues that are not needed to determine if a question concerning representation exists—unless the regional director decides to exercise discretion to decide the issue before the election.

The revised rule provides that disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit “ordinarily” need not be litigated or resolved before an election is conducted. The revised rule does not define “ordinarily” or otherwise specify the percent of unit employees whose unresolved voting eligibility is substantial enough to warrant pre-election litigation. According to the guidance, “more specific proposals on this point remain under consideration by the Board, but the rule going into effect on April 30 simply grant discretion in this area to the regional director.”

The memorandum also covers the burden of proof for unit determinations in light of the Specialty Healthcare decision. In that case, the Board stated that it would first assess whether the petitioned-for unit employees are “readily identifiable as a group (based on job classifications, departments, functions, work locations, skills or similar factors),” and would then apply traditional community-of-interest principles to determine if the petitioned-for unit is appropriate. If the petitioned-for unit satisfies that standard, the burden is on the employer to demonstrate that the additional employees it seeks to include share “an overwhelming community of interest with the petitioned-for employees,” such that there “is no legitimate basis upon which to exclude certain employees from” the larger unit because the traditional community-of-interest factors “overlap almost completely.”

The Q&A document released in conjunction with the guidance memorandum responds to 22 related questions. For example, the document clarifies that the rule will apply only to those cases filed on or after April 30, 2012.

In response to a question about election timeframes, the document states that the revised rule does not set a firm deadline for holding pre-election hearings, but that:

most Regions issue the Notice of Representation Hearing (NOH) on the day the petition is filed and schedule the initial hearing for 7 to 10 days after the petition is filed. In the interest of having uniform and predictable representation case processes throughout the field, the Acting General Counsel has adopted the practice of some regions to normally issue the NOH on the day the petition is filed, and schedule the hearing 7 days (or 5 working days) from the date of issuance of the NOH.

As for requests for hearing postponement, the Q&A document emphasizes that such requests for a date more than 14 days after the filing of the NOH “will normally not be granted absent extraordinary circumstances.”

With respect to the types of issues that may be litigated in a pre-election hearing, the guidance explains that such issues include those affecting jurisdiction, labor organization status, scope of and appropriateness of the unit, and bars to an election.

In assessing the appropriateness of a bargaining unit, the Q&A document explains that:

if you decline to take a position on a presumptively appropriate unit, you may be precluded from presenting evidence relevant to the determination of an appropriate unit. If the unit is not presumptively appropriate, the record will have to contain sufficient evidence to establish whether the petitioned unit is appropriate.

The guidance covers a number of other issues related to the appropriateness of a bargaining unit. Generally, the revised rule states that disputes over eligibility to vote or inclusion in an appropriate unit “ordinarily” need not be litigated or resolved before an election is conducted. The Q&A notes that the rule:

did not define “ordinarily” or otherwise specify the number of eligibility issues substantial enough to warrant pre-election litigation. The Acting General Counsel has decided to use the current guideline that applies to negotiated stipulation agreements and gives regional directors discretion to defer the resolution of up to 10% of the unit to the post-election stage. Regional directors will continue to have discretion to exceed that 10% threshold, where appropriate.

The document states further that under certain circumstances the regional director may allow litigation over eligibility or inclusion issues even if the number of employees affected is less than 10% of the unit. If the number exceeds the 10% threshold, however, these issues would ordinarily be addressed at the pre-election stage.

With respect to the post-hearing process, the Q&A document notes that parties are permitted to file post-election briefs “only by special permission of the hearing officer, who will make that decision in consultation with regional management.”

For a detailed discussion of this new guidance, see Littler’s ASAP: Pick Up the Pace: New NLRB Regulations Force Employers to Respond More Quickly to Election Petitions by Tom Dowd.

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Employer Reminder: Section 303 Court Actions May be a Means to Circumvent NLRB

Labor Management Relations Practice Group — Thu, 26 Apr 2012 12:28:39 -0800

By Tedd Kochman

Given the ongoing climate at the National Labor Relations Board, many employers continue to feel they are facing "unfriendly fire." As such, employers would be well served to consider, when appropriate, some longstanding alternative routes for pursuit of legitimate violations of the National Labor Relations Act. Specifically, Section 303 of the Labor Management Relations Act (LMRA) affords employers, under certain circumstances, the ability to seek relief in court. The Northern District of Georgia’s holding in Circle Group, L.L.C. v. Southeastern Carpenters Regional Council offers some incentive for employers to explore venturing down a litigation road often less traveled.

Section 303 of the LMRA authorizes an employer to pursue a private damages action where the employer has been injured by a union's unfair labor practice. Specifically, Section 303(a) makes it unlawful for a labor organization to engage in conduct defined as an unfair labor practice under Section 8(b)(4) of the NLRA. As a remedy for this conduct, Section 303(b) provides that: "[w]hoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States . . . and shall recover the damages by him sustained and the cost of the suit." In Circle Group, the company availed itself of its court access rights under Section 303 to sue the union.

The core allegations related to the union's conduct during its purported "area standards" campaign in Atlanta against the employer – a Georgia company engaged in interior construction, including drywall and acoustic ceilings. The employer's alleged position was that the union engaged in repeated acts of unlawful bannering/picketing in violation of Section 8(b)(4) of the NLRA.

The significance of Circle Group, however, lies beyond the dispute surrounding the underlying handbilling and bannering/picketing issue. These types of cases, as construction industry companies are well aware, are plentiful before the Board. However, this case warrants attention due to: (1) the company's decision to litigate this as a Section 303 claim; and (2) the reviewing court's unwillingness to readily dismiss and/or dispose of the employer's claims on the union's motion for summary judgment. The court allowed the employer to proceed on its claims that: (1) "at least one of the objectives of the Defendant Union's picketing was to induce or encourage employees of third parties to refuse to work;" and (2) the Union threatened, coerced or restrained various employers, entities, individuals, or executives engaged in interstate commerce or an industry affecting interstate commerce "with an object of: (a) forcing or requiring The Circle Group to join Defendant Union . . . ."

The court also reminded the parties that the use of bannering and handbilling as a means of "truthfully advising the public" of a labor dispute also requires that banners and handbills convey truthful information. In addition, the court made clear that a union cannot avoid liability for illegally threatening a secondary employer by conveying the threat with innocuous words, implications and body language. Liability results from the unlawful threat, not from the particular words or gestures used to convey it. Nor can a union avoid liability because the same statement could be reasonably interpreted as both a threat of a legal primary picket and a threat of an illegal secondary picket.

In light of this case, employers should remember the potential opportunity presented by Section 303 actions. On one hand, employers may benefit from having the issues presented to a jury. On the other hand, pursuing such actions via a Section 303 claim does take away the benefit of injunctive relief. Such a route is not appropriate under all circumstances, but the case does support the conclusion that such an action may be the best opportunity to avoid an anticipated negative result at the Board level. Finally, employers should consider that the mere threat of a damages action could cause a union engaging in unprotected activity to withdraw from such behavior.

Senate Defeats Resolution to Block NLRB Election Rule

Ilyse Schuman — Tue, 24 Apr 2012 13:39:49 -0800

A measure designed to prevent the National Labor Relations Board’s new election rule from taking effect next Monday was defeated in the Senate. On Tuesday the Senate voted 45-54 in favor of a motion to proceed to a vote on S. J. Res. 36, a resolution disapproving of the Board’s rule that expedites and makes other dramatic changes to the representation election process. At least 60 votes were needed to allow the resolution to proceed to a vote. The vote was largely along party lines, with no Democrats supporting the resolution and Senator Lisa Murkowski (R-AK) the only Republican to vote against the measure. Continue reading this entry at Littler's Washington DC Employment Law Update.

U.S. Court of Appeals for the D.C. Circuit Enjoins NLRB From Enforcing Notice Posting Rule

Stefan Marculewicz — Tue, 17 Apr 2012 11:13:28 -0800

Following a South Carolina federal court’s finding that the National Labor Relations Board lacked the authority to promulgate its notice posting rule, the U.S. Court of Appeals for the D.C. Circuit has granted an emergency motion enjoining the Board from enforcing the rule. Last month in a separate lawsuit brought by the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW), the U.S. District Court for the District of Columbia upheld the Board’s authority to issue the rule, but struck down the rule’s enforcement provisions. The parties in the D.C. case promptly appealed the portion of the decision affirming the Board’s rule-making authority and moved to enjoin enforcement of the rule while the appeal was pending. The appellate court initially denied this motion for an injunction but reversed course in an order (pdf) issued on April 17, 2012.

The court states in the order:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits. We note also that the district court’s severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement. The Board has indicated that it may cross-appeal that aspect of the district court’s decision. The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

The order schedules oral argument in this case for September 2012. A final decision on the merits in this matter, therefore, is not expected until the fall of 2012 at the earliest.

For the time-being, employers do not have to post the NLRB notice, and the April 30 deadline is no longer in effect for the posting. The existing posting requirement for federal contractors, however, remains in effect. That said, the cases are still subject to final disposition by the courts of appeals, and even possibly the U.S. Supreme Court, which will have the final word on whether the NLRB can make employers post a notice or not. We will continue to monitor this issue for developments.

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South Carolina Federal Court Finds NLRB Posting Rule Unlawful

Stefan Marculewicz — Mon, 16 Apr 2012 06:21:52 -0800

A South Carolina federal court has ruled that the National Labor Relations Board lacked the authority to promulgate its notice-posting rule, which is scheduled to take effect on April 30, 2012. This rule mandates that all private sector employers subject to the National Labor Relations Act (NLRA) post a notice informing employees of their rights under the NLRA in a "conspicuous place" readily seen by employees. The rule includes a number of enforcement provisions that have been highly contested. Among other remedies for a posting rule violation, the Board would be permitted to toll the six month statute of limitations for an employee who files an unfair labor practice (ULP) charge. This provision would extend the statute of limitations for all unfair labor practice actions against the employer, not just those ULPs arising from the failure to post the notice. The rule would also deem an employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue,” as well as render a failure to post the required notice a ULP in its own right. Last month, the U.S. District Court for the District of Columbia struck down the enforcement provisions of the rule, but upheld the Board’s authority to issue the rule in the first instance.

In the latest case, Chamber of Commerce v. NLRB, (pdf) plaintiffs argued that the notice posting rule is unlawful because: (a) the Board lacked the authority to promulgate the rule; (b) the Board exceeded its authority by creating a new ULP and by authorizing tolling of the statutorily-mandated six-month statute of limitations for filing a ULP charge; and (c) the rule violates an employer’s free speech rights. In its decision, the U.S. District Court for the District of South Carolina determined that based on the plain language and structure of the NLRA, the Board lacked the authority to promulgate the rule in the first place. The court, therefore, did not reach the second two arguments questioning the rule’s legitimacy.

The Board’s position was that it had broad authority under Section 6 of the NLRA to issue the rule. Section 6 provides that “[t]he Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of [the NLRA].” The South Carolina court disagreed, stating that “the plain language and structure of the Act compel a finding that the Board lacks authority under Section 6 to promulgate the rule.”

The court first explained that the plain language of Section 6 requires that rules issued by the Board be “necessary to carry out” other provisions of the Act. According to the court:

Defendants argue that the rule is “necessary to carry out” Sections 1 and 7 of the Act, but confuse a “necessary” rule with one that is simply useful. It can be said that the notice-posting rule “aids” or “furthers” the aspirational goals of Section 1 by notifying employees of their rights under Section 7, but defendants have not shown that the rule is “necessary” to carry out any other provision of the Act.

The opinion states that nowhere does the NLRA require employers to post general notices of employee rights under the Act. In contrast, the opinion emphasizes, Congress has enacted or amended several other federal labor statutes “to expressly require employers to post notices of employees’ statutory rights.”

In addition to looking at the plain language of the NLRA, the court discussed the context of the law. According to the court, “it is clear from the structure of the Act that Congress intended the Board’s authority over employers to be triggered by an outside party’s filing of a representation petition or ULP charge.” The notice-posting rule, however, “proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the Board’s reactive role under the Act.”

The court was similarly unpersuaded by the Board’s argument that it properly exercised its rulemaking authority by filling a statutory “gap” in the law. According to this theory, because the NLRA is silent with respect to notice posting, the court can consider factors other than the law’s plain language. The court found, however, that

Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.

This new decision has clearly dealt a set back to the NLRB in its efforts to require employers to post this notice. However, it is also unclear how employers should reconcile the two federal court decisions, since the decision out of the District of Columbia court upheld the Board’s authority to issue the rule. No doubt, this matter will ultimately be resolved in the appellate courts. There remains a lack of clarity about what an employer should do given the conflicting opinions. For the time being, it would appear that the April 30 deadline for posting is no longer effective, and, in at least one jurisdiction, if not everywhere, employers may not have to post. We would expect the NLRB to provide some guidance in connection with this decision in the coming weeks. We will continue to monitor this rapidly evolving situation and inform you of developments as we learn of them.

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