September 2011

NLRB to Move Ahead with Controversial Initiatives

National Labor Relations Board Finalizing Posting Requirement

On August 30, the National Labor Relations Board (NLRB) is publishing in The Federal Register a new final rule requiring nearly all private employers, union or non-union, to post a notice of employee rights under The National Labor Relations Act. The Rule will be effective November 14, 2011, and posting must be visible to employees on that date. The only excluded employers will be railroads, airlines, agricultural employers and very small employers who perform virtually no business in interstate commerce.

The notice will advise employees of their rights to engage in union organizing, to bargain collectively and engage in other concerted protected activities. It also contains notification of certain unlawful union activity. The poster will be similar to that required of all federal contractors as a result of President Obama's January 30, 2009 Executive Order. Employers may obtain a copy from NLRB Regional Offices November 1, 2011.Failure to comply with the Rule may, according to the NLRB website, result in an unfair labor practice.

If more than 20 percent of an employers' workforce is not proficient in English, the Board will provide a translation of the notice.

The Rule was finalized just prior to the expiration of Chairman Wilma Liebman's term, which expired August 27 at midnight. The White House named former Buffalo union lawyer and current Board Member Mark Pearce as the new NLRB Chairman, effective immediately.

No Extension of the Comment Period for New "Quickie" NLRB Election

Dubbed by some as the "quickie election," NLRB election procedures proposed by the NLRB on June 21, 2011 had an August 27, 2011 deadline for comment, and hearings on July 18 and 19. The "quickie" election, held 21 days after the filing of the union petition (instead of the Board's traditional 45-day election time table), was detailed in Polsinelli Shughart's June 22, 2011 advisory. Unlike the Department of Labor, which extended its comment period for the expanded disclosure rules for those advising employees in union campaigns, the Board did not extend the comment period, despite receiving 21,000 comments.

With Chairman Liebman's departure and the December 31, 2011 expiration of Member Craig Becker's recess appointment, the Board will likely finalize its quickie election procedures before December 31, when the Board will be reduced to two members again (instead of its normal number of five) and unable, after the 2010 Supreme Court's ruling in New Process Steel v. NLRB, to legally finalize decisions or orders with just two members. Though nominated in January, nominations of the two new members have not been voted on by the Senate Committee on Health Education, Labor, and Pensions. It is uncertain either will be confirmed before Becker leaves the Board.

For More Information

For questions pertaining to the information presented above, please feel free to contact:

• W. Terrence Kilroy | 816.374.0533 | tkilroy@polsinelli.com (Kansas City)
• Sang-Yul Lee | 312.873.3631 | slee@polsinelli.com (Chicago)
• Jon A. Bierman | 314.889.7045 | jbierman@polsinelli.com (St. Louis)
• Jay M. Dade | 417.829.3812 | jdade@polsinelli.com (Springfield)
• Christopher M. Mason | 602.650.2017 | cmmason@polsinelli.com (Phoenix)

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