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The NLRB Again Postpones the Implementation of its New Posting Rule

By: Nick Nykulak | 2/20/2012 | Category: Labor Law-Posting Requirements
The National Labor Relations Board (“Board”) has again issued a statement postponing the implementation for its new posting requirement directed at informing employees of their rights under the National Labor Relations Act (“NLRA”) until April 30, 2012.  Previously, the Board had decided that this new posting requirement would go into effect on November 14, 2011, and then postponed its implementation until January 31, 2012.  The Board stated that recent inquiries from various businesses and trade associations regarding whether they fall under the Board’s jurisdiction and were required to post the notice was the reason for delaying the implementation of the rule the first time. 

In September of 2011, several employer trade groups and business associations, including the United States Chamber of Commerce, the National Association of Manufacturers, and the National Right to Work Legal Defense and Education Foundation filed lawsuits claiming the Board exceeded its authority in requiring all employers subject to the Board’s jurisdiction to post a notice regarding an employee’s rights under the NLRA.  Presiding over the action to enjoin the implementation of the Board’s posting rule is Judge Amy Berman Jackson of the United States District Court for the District of Columbia. 

Judge Jackson requested that the Board postpone the implementation of its posting rule in order to allow time to render a decision in the case.  Among some of the arguments the Judge is considering is whether the Board exceeded its statutory authority under the law in mandating a posting requirement, whether the Board’s poster constitutes compelled employer speech in violation of the First Amendment, whether the poster violates an employer’s speech rights under Section 8(c) of the National Labor Relations Act, and whether the Board can extend the statutorily mandated six (6) month statute of limitations indefinitely in unfair labor practice cases because of an employer’s failure to post the required notice. A ruling on these issues, and others, is expected prior to the new April 30, 2012 implementation date.  Regardless of what the Judge decides in the case, the fight over the Board’s posting requirement will be far from over as any decision will most likely be appealed by either side.

Court actions are not the only avenue being sought to stop the Board’s implementation of the posting rule.  Recently, the House Appropriations Committee has proposed a rider to the Board’s 2012 budget that would prevent the Board from using any portion of its budget to enforce the posting rule. If passed, the rule will still be implemented by the Board, but the Board would not be able to use any of its funding to pursue an employer that fails to post the notice. 

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