NLRB Posting Requirement Tied Up in Court and Delayed to April 30, 2012

Multiple court challenges continue to delay the effective date of the National Labor Relations Board rule approved in August 2011 requiring an employer to post a notice informing employees of their rights under the National Labor Relations Act. The requirement initially was to take effect in November 2011 but was delayed to January 2012 and further delayed to April 30, 2012. The latest postponement was requested by Judge Amy Berman of the United States District Court for the District of Columbia in connection with a lawsuit filed by the National Association of Manufacturers and other employer advocate groups. The posting requirement requires private-sector employers specifically to post a notice informing employees of their rights to join a union, bargain collectively through union representatives for a contract with their employer, and discuss wages and benefits with co-workers or a union. The employer community argues in the court challenges that the Board’s jurisdiction is limited to cases where unions are trying to organize employees or an employer has been charged with an unfair labor practice. The suits also argue that the NLRB exceeded its statutory authority by making failure to post the notice an unfair labor practice, with no basis in the NLRA for doing so. In January 2012 plaintiffs in the District of Columbia suit argued that the NLRB lost its authority to implement and enforce the challenged rule when the term of Board member Becker expired and President Obama made three recess appointments to bring the Board up to its full complement of five members. Plaintiffs argue that the President’s three recess appointments were unconstitutional and claim that as a result, there are only two lawfully appointed Board members, which prevents the NLRB from implementing the rule. With the outcome of the litigation challenging the NLRB posting rule still hard to predict, employers should continue to monitor the status of the rule and be prepared to comply by April 30, 2012 if the Board prevails in the litigation. If you have any questions about this imminent posting requirement, feel free to contact Patrick McGovern, Esq. or John Vreeland, Esq. in our Labor Law Group.