| |Recent NLRB Developments: New Unionization and Posting Rules By James A. Godwin
The National Labor Relations Board (the “Board”), promulgated many significant new regulations affecting unionization and regulation of non-union employers after the Employee Free Choice Act was not passed in Congress. The Administration of the Board decided to go around Congress by adopting much of the substance of the Act under the guise of regulatory changes clarifying the Act's existing provisions. Most significantly, the Board streamlined the unionization process and required even non-union employers to post notices regarding employees’ NLRA rights. Some of the regulations are the subject of lawsuits brought by the National Chamber of Commerce and others arguing that they are substantively or procedurally deficient. However, the changes are scheduled to take effect on April 30, 2012. Notably, however, there is some possibility that the Board’s actions have been unconstitutional because of the participation of members appointed through the “recess appointment” process. One cannot assume that the courts will ultimately invalidate the new regulations, so it is prudent to comply with them until the court’s weigh in.