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The NLRB’s recent rulemaking requiring private employers to post workplace notices of federal labor law rights, originally slated to take effect on November 14, 2011, has been delayed until January 31, 2012. The postponement follows litigation by various business groups challenging the final rule, as well as efforts by Congressional Republicans to overturn it. The NLRB has denied any connection between the delay and the litigation, instead explaining that it postponed the effective date to provide small- and medium-sized businesses additional time to familiarize themselves with the rule’s requirements.
Applying its rarely-used rulemaking powers, the NLRB published a final rule on posting that applies to unionized and non-unionized workplaces alike. Addressing the objections of various commenters over an eight-month comment period, the final rule omitted requirements obligating employers to distribute notice electronically and incorporated new notice language clarifying the right of employees to abstain from engaging in statutorily-protected activity under the NLRA.
Following the publication of the final rule on August 30, 2011, the National Association of Manufacturers and the National Federation of Independent Business each filed suit against the NLRB, asserting that the rulemaking exceeded the Board’s authority and violated their First Amendment rights. The cases were consolidated in Nat’l Assoc. of Manufacturers v. NLRB, No. 1:11-cv-01629 (D.D.C.). The NLRB’s postponement followed a request of the presiding judge in that litigation, who asked that the Board push back the effective date so that she would have more time to evaluate the parties’ arguments. The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have also challenged the final rule in a separate action on similar grounds, in federal court in South Carolina in Chamber of Commerce v. NLRB, No. 2:11-cv-02516 (D.S.C.).
Congressional Republicans have also challenged the final rule, introducing the “Workforce Democracy and Fairness Act” (H.R. 3094) in the House in October and challenging the rule, along with other recent Board actions in a recent hearing by the House Small Business Committee.
Under the rule, failure to adhere to the posting requirements may be treated as an unfair labor practice under NLRA Sec. 8(a)(1). Knowing and willful employer refusals to post notices could be considered evidence of unlawful motive in NLRB proceedings in which employer motive is at issue. The NLRB expects that most employers failing to post the notice, at least initially, will likely be unaware of the new rule. In those cases, the Board will not seek penalties against the employer as long as the employer promptly rectifies the non-compliance upon being informed of the posting requirement.