NLRB Postpones Union Rights

Posting Deadline

       The National Labor Relations Board has postponed from November 14, 2011 to January 31, 2012 the implementation date of its controversial rule requiring employers to post a notice of employees' rights under the National Labor Relations Act.  While the Board claims that the decision, which was announced October 5, was made "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses," a federal judge overseeing one of several lawsuits challenging the rule had requested the delay. The postponement suggests that the Obama NLRB is feeling the heat from Congress and the business community over its perceived overreaching.

       The Board adopted the notice-posting rule on August 30 over the vigorous dissent of its sole Republican member. The 11" x 17" notice, which must be posted in English and any other language spoken by more than 20 percent of employees, informs employees that the NLRA protects their right to organize a union, form, join or assist a union, bargain collectively, discuss wages, benefits and other conditions of employment, raise complaints, strike and picket, or choose not to do any of these activities. It also lists employer and union conduct prohibited by the NLRA.  An employer's failure to post the notice may extend the 6-month period for filing unfair labor practice charges against an employer, and may be evidence of an employer's unlawful motive in any unfair labor practice case based on other NLRA violations.

       We previously informed you that the National Association of Manufacturers (NAM) had sought to block the NLRB from implementing the rule while its lawsuit was pending. The judge in that case, who this week consolidated NAM's case with a similar suit by the National Federation of Independent Business (NFIB), twice asked the NLRB to postpone the rule's effective date to allow her to consider the parties' arguments more fully without issuing a preliminary ruling.  After refusing the judge's first request, the Board seems to have relented and has agreed to the postponement.  The NAM and NFIB lawsuits claim that the rule exceeds the NLRB's authority under the NLRA, which does not contain a notice requirement.

       The U.S. Chamber of Commerce has also filed suit, additionally complaining that the Notice does not mention state right-to-work laws, was not adopted in compliance with the federal regulatory process, and violates employers' First Amendment rights by forcing them to publish ideological views with which they may disagree.

       The notice-posting rule has also increased Congressional scrutiny of the Obama NLRB. That scrutiny was already intense in the wake of the NLRB's adoption of accelerated procedures for representation elections and the NLRB General Counsel's decision to prosecute Boeing for allegedly moving a production facility from Washington to South Carolina in retaliation for strikes by the Washington employees.

       In response to the Boeing action, the House passed the "Protecting Jobs from Government Interference Act," which would eliminate the NLRB's authority to order an employer to close or relocate a workplace, or to transfer employees between workplaces, as a remedy for an unfair labor practice.

      In response to the accelerated election procedures, Rep. John Kline, a leading critic of the Obama NLRB, has introduced a bill in the House titled the "Workplace Democracy and Fairness Act".  The bill would amend the NLRA so as to overrule many of the accelerated procedures contained in the NLRB's new election rules.

     We will keep readers abreast of developments regarding the NLRB notice and any legislative changes to the NLRB's authority or election procedures.

      If you would like to know more about our traditional labor relations services, please call your contact at the firm at (818) 508-3700, or visit us on the web, at www.brgslaw.com.

Sincerely,

Richard S. Rosenberg

Partner

BRG&S, LLP