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Update on NLRB Union Organizing and Rights Posting Requirement

Labor & Employment Alert David B. Kern, Fred Gants

As we advised in our August 25, 2011 alert (http://www.quarles.com/nlrb_issues_final_rule_aug_2011/), the National Labor Relations Board ("the Board") issued a final rule requiring the vast majority of private sector employers (whether they have unionized employees or not) to post a Notice advising employees of their rights under the National Labor Relations Act. The rule is scheduled to take effect on Nov. 14, 2011. Recent developments suggest that employers should not rush to post the Notice, but should instead wait and see if the requirement holds up.

The Notice Posting Rule

The Notice of rights, which must be at least 11 by 17 inches in size, can be obtained from the NLRB Regional Offices or can be downloaded from the Board's website and printed in color or black and white. Translated versions of the Notice will be available and must be posted at workplaces where at least 20 percent of the employees are not proficient in English.

The Notice must be posted in conspicuous places, including "all places where notices to employees concerning personnel rules or policies are customarily posted." Employers who communicate electronically with their employees must distribute the Notice electronically as well. The Notice must be posted on an Internet or Intranet site if personnel rules and policies are customarily posted there. The electronic posting must be no less prominent than other personnel notices to employees and may be either an exact copy of the poster or a link to the Board's website that contains the poster. If a link is used, it must say: "Employee Rights under the National Labor Relations Act." Employers are not required to distribute the Notice by email, Twitter or other electronic means.

Recent Developments - Reasons to Wait

Many employers have been receiving emails from companies that sell posters to employers and from other sources reminding them of the need to post. Many of our clients have been asking us whether and how they should respond to the Board's rule. Therefore, we wanted to update everyone on the status of the new rule and advise you to consider a "wait-and-see" approach until we get closer to the November 14, 2011 deadline.

Why? A number of lawsuits are pending which, if successful, would temporarily or permanently enjoin the Board from enforcing the regulation. In addition, a House Appropriations Committee draft funding bill - released on September 29, 2011 - would cut the Board's spending authority in fiscal year 2012 by $49 million and prohibit the agency from spending any of its appropriated funds on half a dozen activities that include final and proposed regulations, and application or enforcement of recent board precedents. The regulations that would be impacted include the August 25, 2011 rule requiring employers to post notices of employee rights under the National Labor Relations Act. Therefore, we suggest that employers wait and see how these events play out rather than take action prematurely and perhaps unnecessarily. Stay tuned for further updates.

If you have questions about the posting requirements under the Board's final rule or the recent challenges to the Board's actions, please contact David B. Kern at (414) 277-5653 / david.kern@quarles.com, Fred Gants at (608) 283-2618 / fred.gants@quarles.com, or your Quarles & Brady LLP attorney.