In two highly publicized and much anticipated decisions affecting the construction industry, two separate federal courts stymied the National Labor Relations Board’s recent efforts to (a) raise awareness of employee’s rights to organize under the National Labor Relations Act and (b) streamline the Board’s union election process. 

First, on April 17, 2012, the United States Court of Appeals for the District of Columbia Circuit granted an emergency injunction staying the Board’s rule requiring all employers covered by the Act to post a notice informing employees of their rights (the “notice-posting rule”). Subpart A of the notice-posting rule would require most private sector employers, regardless of whether their employees are organized by unions, to post an 11-by-17 inch “Employee Rights” notice informing employees of their rights under the Act, including the right to form, join or assist a union to negotiate with their employer over wages, hours, and other terms and conditions of employment and to raise work-related complaints directly with their employer or with a government agency.

As a result of the Appeals Court’s decision, the notice-posting rule did not go into effect on April 30, 2012, the date the Board intended to implement the rule. The stay will remain in place while the appellate courts, and possibly the U.S. Supreme Court, decide whether the NLRB has the authority to promulgate the notice-posting rule. Although the Court ordered expedited briefing and scheduled oral argument for September 2012, it is likely the stay will remain through most of the balance of 2012. For now, however, employers are not required to post the notice.

If, however, the notice-posting rule ultimately takes effect, many employees may be prompted to discuss and explore unionization, which, in turn, may result in more employee-driven union organizing campaigns.

Second, on May 14, 2012, the United States District Court for the District of Columbia held that the Board’s expedited representation election rule that went into effect on April 30, 2012, is invalid because the Board lacked a quorum of its members (as it only had two members, rather than the necessary three) when it voted to promulgate the new election rule.  The Board’s election rule would have shortened the median timeframe between the filing of a union representation petition and a union election from 42 days to 14-21 days. This shortened timeframe would undoubtedly have negatively impacted the ability of employers to respond to union campaigns, resulting in a greater likelihood of union victories in Board-conducted elections.

The District Court noted that the Board presently operates with five (5) members and nothing in its decision prevents it from voting on the rules again.  In response to the District Court’s decision, the Board has temporarily suspended the implementation of changes to its representation case process and has advised its regional directors to return to previous procedures for election petitions.