NLRB DELAYS EMPLOYEE RIGHTS POSTING REQUIREMENT

All the employer backlash directed towards the National Labor Relations Board (NLRB) for its latest move in what appears to be an anti-employer agenda driven by partisan politics seems to have had an impact, after all.

Last week, the NLRB postponed its previously announced requirement, which you can read about here, that employers post notices letting employees know of their right to unionize.  That requirement was set to go into effect on November 14, but has now been pushed back to January 31, 2012.

The Board took this action after a judge presiding in one of the three lawsuits challenging the NLRB’s right to implement such a rule asked the Board to delay the effective date to permit her to fully consider the case.  That was the suit brought by the National Federation of Independent Business, although the National Association of Manufacturers and the U.S. Chamber of Commerce have also sued the Board over the requirement.

Perhaps not surprisingly, the NLRB has tried to spin their determination to postpone implementing the rule as one unrelated to any of the legal challenges it now faces.  It claims that it pushed back the implementation date “to allow for enhanced education and outreach” on the issue as a result of some claimed uncertainty about which employers are covered by the requirement.

We believe that the Board really pushed back the implementation date because it knows it’s fighting an uphill battle to demonstrate that its rule can pass legal muster, since there’s no authority in the governing law – the National Labor Relations Act (NLRA) – for the Board to promulgate a rule like this.  Rather, the Board is merely the agency created by the NLRA and charged with enforcing the Act, not lawmaking.

Odds are that at least one of the legal challenges currently on the table will have resulted in a final judicial determination before the new January 31, 2012, deadline.  Employers everywhere are understandably hoping that determination is a proper one which enjoins the Board from enforcing this requirement.

Stay tuned to the Employment Essentials blog for future developments on this issue as they unfold.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
 
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