Fed courts rule against NLRB proposal; vote on 'ambush' bill next

Jessica M. Karmasek Apr. 18, 2012, 9:15am



CHARLESTON, S.C. (Legal Newsline) - A federal judge last week struck down a National Labor Relations Board proposal requiring all employers, including those in the private sector, to post a notice of employee rights.

For more than 75 years, the NLRB did not require employers to post a general notice of employee rights in the workplace.

However, in December 2010, the board changed course and issued a proposed rule that all employers subject to the National Labor Relations Act, or NLRA, must post notices informing employees of their rights -- including their rights to form or join a union -- under the act.

The board published its final rule in August 2011. In September 2011, pro-business groups, including the U.S. Chamber of Commerce, sued the NLRB.

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The proposal was set to take effect April 30.

However, Judge David C. Norton, of the U.S. District Court of the District of South Carolina, ruled Friday that private businesses do not have to post such notices informing workers about their rights to form or join a union.

Norton, in his 31-page order, said the NLRB, in promulgating the final rule, "exceeded its authority" in violation of the Administrative Procedure Act.

"Here, the notice-posting rule does not serve to 'carry out' any existing duties under the (NLRA), but instead places an affirmative obligation on employers prior to a charge or petition first being filed," he wrote.

"Congress did not impose a notice-posting requirement on employers in the (NLRA) or commit this area of regulation to the Board."

Steve Roberts, president of the West Virginia Chamber of Commerce, said a federal appeals court upheld Norton's ruling Tuesday.

"From our point of view (the Chamber's), this is a very significant turn of events," he said. "We are very appreciative of the actions of the federal courts in stopping what was an illegal act by the NLRB.

"We feel the NLRB exceeded its authority. These are Obama appointees who pushed this, and we feel they pushed it incorrectly and illegally."

Roberts explained that the NLRB rule -- which, now, won't be implemented because of the court rulings -- would have forced all employers to put up a poster in the workplace essentially encouraging employees to contact unions about speaking for them to their employers.

"We believe the best line of communication is between employee and employers," he said.

Employers, he said, are already too overwhelmed and burdened with other regulations.

"They've already created too much uncertainty, which makes it hard to employ people," Roberts explained.

"This rule is just another example of overreach of big government, sponsored by the Obama administration and detrimental to the interest of working people."

Simply put, it doesn't further the interest of working people or businesses, Roberts said.

"This is a win for law-abiding citizens and another major setback for the anti-business agenda of the Obama administration," he said.

And yet another setback could be coming.

A resolution is pending before the U.S. Senate -- Senate Joint Resolution 36 -- that would nullify, or prohibit, the NLRB from implementing a rule for so-called "ambush elections."

The rule would condense the time -- to just over one week -- that unions have to mobilize workers for a vote on forming a union.

The rule, Roberts explained, would make it more difficult for employers to talk to their employees.

"Unions, in many cases, don't want employers to talk to employees," he said.

Employers and pro-business groups, like the Chamber, are protesting the rule. Employers, in particular, argue that it does not give them enough time to counter a union drive and consult with counsel.

"It's just a bad idea," Roberts said.

The Senate vote on SJR 36 is expected to be held sometime next week.

Roberts said the West Virginia Chamber is encouraging its home state senators, Democrats Jay Rockefeller and Joe Manchin, to support the resolution -- especially Manchin.

Manchin, who won a special election in November 2010 to fill the seat of Sen. Robert Byrd, who died in June 2010, is considered to be a key vote.

An outspoken critic of the Obama administration's environmental policies and their impact on West Virginia's economy, Manchin has received the backing of business and labor groups, including the state Chamber.

"We're encouraging him to allow a reasonable balance, and to allow employers time to talk to their employees," Roberts said.

"We believe that's how good relationships develop in the workplace."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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