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NLRB Developments

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On May 7, a federal court vacated in its entirety the National Labor Relations Board’s (NLRB) August 2011 regulation requiring businesses to post notices of employee rights. The D.C. Circuit’s decision, based on the employer free speech provisions in Section 8(c) of the National Labor Relations Act (NLRA), resolves an appeal on the NLRB’s notice posting rule. Another challenge to the rule is pending in the Fourth Circuit.

The NLRB’s notice posting rule originally would have compelled nearly all non-profit and private-sector employers to display in the workplace an NLRA employee rights poster by April 30, 2012. But an emergency injunction blocked the effective date in part because SHRM, as part of the Coalition for a Democratic Workplace, challenged the rule in federal district court on the grounds that the NLRB has no statutory authority to issue a poster requirement. Two federal courts issued conflicting decisions on the rule in 2012, prompting the emergency injunction until the appeals of both cases could be heard.

The NLRB continues to operate with uncertainty since the January 2013 federal appeals court ruling in Noel Canning v. NLRB that held two of the three current members of the NLRB were unconstitutionally appointed. The NLRB has appealed the Noel Canning decision to the Supreme Court, and thus the validity of hundreds of Board rulings issued since early 2012 will be in question for several months until the Supreme Court rules or the Senate confirms new NLRB members.

The Senate Committee on Health, Education, Labor and Pensions convened a May 16 hearing to consider President Obama’s five pending nominations to the NLRB. Due to the controversy surrounding many NLRB actions in recent years, it is unclear when the five nominations will be considered by the full Senate.

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