NLRB Postpones Notice Posting Deadline; Regulation Now Set to Take Effect April 30

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The National Labor Relations Board Dec. 23 announced that it is postponing until April 30, 2012, a requirement for employers subject to NLRB jurisdiction to post a notice informing employees of their federal labor law rights.

The NLRB regulation, issued Aug. 30, 2011, would require employers to post an 11-by-17-inch notice describing employee rights and to publish the notice on an intranet or internet site if the employer customarily uses such media to communicate with employees about rules and policies (62 BTM 273, 8/30/11).

The posting requirement originally was to have gone into effect in November, but the board moved the effective date to Jan. 31, 2012 (62 BTM 321, 10/11/11), stating that additional time was needed “in order to allow for enhanced education and outreach to employers.”

The rule has been challenged in lawsuits filed in the U.S. District Court for the District of Columbia (National Association of Manufacturers v. NLRB, D.D.C., No. 11-cv-1629) and the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516).

Judge Amy Berman Jackson held a hearing Dec. 19 in the District of Columbia proceeding and told NLRB lawyers that the legal issues “deserve more time” than the Jan. 31 effective date gave her.

Jackson held the hearing to consider legal arguments of NLRB and the National Association of Manufacturers, the National Right to Work Legal Defense and Education Fund Inc., the Coalition for a Democratic Workplace, and the National Federation of Independent Business, along with several small businesses that joined in challenging the NLRB rule.

Actively questioning lawyers on both sides of the dispute, Jackson pressed the challengers on their arguments that the National Labor Relations Act does not expressly give the board authority to require notice postings.

But the judge also questioned NLRB's authority to treat a failure to post the new employee rights notice as an unfair labor practice. “Aren't you amending the statute in the way they're complaining about?” Jackson asked a board attorney.

In a statement announcing the new April 30 effective date, NLRB said “postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”