NLRB Delays Effective Date of Rule Requiring Posting of Labor Law Rights

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By Lawrence E. Dube  

The National Labor Relations Board Oct. 5 postponed until Jan. 31, 2012, the effective date of its controversial rule requiring most private employers in the United States to post a notice informing employees of their rights under federal labor law.

The NLRB regulation previously was scheduled to take effect Nov. 14.

The rule originally was proposed by a divided board in December 2010 (28 HRR 1382, 12/27/10) and published as a final rule in the Aug. 30 Federal Register (76 Fed. Reg. 54,006).

The proposed rule, which drew heavy comment and opposition by business groups, would require employers subject to NLRB's jurisdiction to post an 11-by-17 inch notice advising employees of their rights under the National Labor Relations Act. Employers that use electronic communications to advise employees of company policies would also be required to post the NLRB notice in a similar manner.

NLRB's Oct. 5 announcement said the effective date of the notice posting rule was being pushed back “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

“The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board's jurisdiction, and was made in the interest of ensuring broad voluntary compliance,” the agency's Office of Public Affairs said in the statement.

Court Challenges Await Resolution.

The board's action will allow federal judges in Washington, D.C., and South Carolina additional time to consider legal challenges to the rule.

The National Association of Manufacturers and the Coalition for a Democratic Workplace have filed one such challenge in the U.S. District Court for the District of Columbia (National Association of Manufacturers v. NLRB, D.D.C., No. 11-cv-1629; 29 HRR 987, 9/19/11), and the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business have filed another (National Right to Work Legal Defense & Education Foundation Inc. v. NLRB, D.D.C., No. 11-1683).

After learning of NLRB's postponement of the notice rule's effective date, Judge Amy Berman Jackson consolidated the two lawsuits and scheduled a hearing on the challenges for Dec. 19.

The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce filed a third lawsuit challenging the NLRB rule (Chamber of Commerce of the United States v. NLRB, D.S.C., No. 11-2516; 29 HRR 1018, 9/26/11), but the court has not set a schedule for considering that case.

House Bill Would Amend NLRA.

Also Oct. 5, Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, announced that he had introduced the “Workforce Democracy and Fairness Act” (H.R. 3094 ). Kline's bill, co-sponsored by 14 of the 21 Republican members of his committee, would amend NLRA Section 9(b), which presently gives the board the authority to determine whether “the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision” of an employer's workforce.

The board recently held in Specialty Healthcare & Rehabilitation Center (357 N.L.R.B. No. 83, 8/26/11; 29 HRR 934, 9/5/11) that in some cases where the inclusion of additional employees in a proposed unit is disputed, they should not be included unless they share an overwhelming community of interest with the proposed unit.

H.R. 3094 would substitute a lengthy provision containing an eight-factor test of whether employees share a sufficient community of interest to be grouped in a single unit. The legislation would provide that the question of whether additional employees should be included in a proposed voting unit would be determined by whether those employees “share a sufficient community of interest” with workers in the proposed unit.

Kline's proposal would limit the board's discretion in representation case proceedings, requiring that the board allow a minimum of 14 days before a pre-election hearing on representation case issues and prohibiting the agency from conducting an election less than 35 calendar days after the filing of a petition. The board has proposed rule changes aimed at streamlining the processing of election cases and reducing the elapsed time in many cases from the filing of an election petition to the actual conduct of balloting.

By Lawrence E. Dube  

Text of H.R. 3094 may be accessed at