On Oct. 5, 2011, the National Labor Relations Board (“NLRB”) postponed the effective date of its highly controversial new rule requiring private employers to inform their employees of their right to form and support a union. Failure to post the required notice alone constitutes a new unfair labor practice and can also hinder an employer’s ability to defend itself against other unfair labor practice charges. Employers now have until Jan. 31, 2012 to comply with the new rule. Please see our Aug. 29 management alert describing the new rule and its extensive posting requirements.

Delay Allows for Outreach to Small- and Medium-Sized Employers

Employers were originally required to comply with the new rule by Nov. 14. The NLRB issued a Web site notice delaying the effective date of the new rule to Jan. 31, 2012. In its Web site notice, the NLRB explained that the delay was intended “to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The NLRB’s Office of Public Affairs confirmed that “[t]he decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance.” Whether the meager two-month extension of time will be sufficient to educate the countless employers still grappling with understanding the implications of the new rule remains to be seen. It seems more likely that the delay was in response to the potential of an injunction to stop implementation of the rule.

Legality of New Rule To Be Considered in Pending Lawsuits

Even prior to its effective date, the new rule has already been met with court challenges. On Sept. 8, the National Association of Manufacturers and the Coalition for a Democratic Workplace sued the NLRB in the U.S. District Court for the District of Columbia. On Sept. 16, in the same district, the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Businesses also sued the NLRB. On Sept. 19, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce sued the NLRB in the U.S. District Court for the District of South Carolina. All three lawsuits seek injunctions to prevent the NLRB from enforcing the new rule. The lawsuits essentially argue that although the National Labor Relations Act (“NLRA”) authorizes the board to issue regulations “as may be necessary,” it does not permit the board to require notice postings by employers not involved in representation cases or unfair labor practice charge proceedings. The lawsuits also assert that requiring notice postings would violate First Amendment free speech rights of employers. Additionally, the lawsuits contend that the board acted arbitrarily and capriciously in excluding from the notice NLRA language permitting the enforcement of state right-to-work laws. Due to the delay in the effectiveness date of the new rule, the courts may have the opportunity to rule on the aforementioned injunction requests prior to the new rule’s effective date of Jan. 31, 2012.

Congressional Response Indicates Opposition to New Rule

The Oct. 5 Web site notice was posted only an hour before Minnesota Republican Representative John Kline, chairman of the U.S. House of Representatives’ Education and Workforce Committee, announced the introduction of H.R. 3094, a new bill that would make substantial changes to provisions of the NLRA dealing with the resolution of questions concerning union representation of employees. The new bill, known as the “Workforce Democracy and Fairness Act,” would modify the board’s procedures and standards for determining the appropriateness of a bargaining unit. Additionally, the new bill would affect NLRB procedures in representation cases, including by streamlining the processing of election cases, reducing the time between the filing of an election petition to the actual conduct of a ballot election and otherwise limiting the board’s broad discretion. The new bill would also provide that prior to an election, employers would only be required to provide the names of employees along with the employees’ individual choice of a telephone number, email address or mailing address. The House’s Education and Workforce Committee will hold a hearing on the bill on Oct. 12. Notably, following Representative Kline’s announcement, the House’s Small Business Committee conducted a hearing in which Republicans and Democrats again divided over their views on the NLRB’s recent actions.

Complying with the New Rule Is Key for Employers

The new rule has been promulgated and employers must act fast to comply by posting the new notice by Jan. 31, 2012. Because the new rule has sparked litigation and congressional action, employers must now more than ever stay informed of relevant developments. Once posted, the new notice will likely result in increased union organizing activity. Accordingly, employers should ensure their union-related and general employment policies are up-to-date and lawful. Employers should also invest time in re-training Human Resources and management-level employees to make sure they are familiar with the NLRA, other key employment laws and the employer’s various employment policies. Employers should continue to communicate with employees to reinforce the employees’ right to oppose unionization. Employers must act now to not only comply with the new rule, but to also prepare their workplace for increased union activity and to offset the potential impact of the new notice.