Monday, April 23, 2012

The Saga Continues ... NLRB Posting Rule

Under the Obama administration, the National Labor Relations Board ("NLRB") has become much bolder in the position it has taken.  Some time ago, the NLRB decided that employers should be required to post a notice describing employee rights under the National Labor Relations Act ("NLRA").  The notice is interesting for multiple reasons. 

Let's start with the form of the Notice.  It is 11 x 16, stark white background with dark blue Headings and black text.  So there is no chance it can't be missed.  At the bottom of the Notice is a warning in bolded black:  "This is an official Government Notice and mus not be defaced by anyone."  I'm not sure what this mean.  I understand the "don't deface" language.  But why is it an "official Government Notice"?  Isn't it more accurate to say the government is compelling your employer to post this Notice?  And what will happen if, heaven forbid, someone defaces the "official Government Notice"?  Is there a monetary penalty?  Prison time?  Or are you simply forced to erase the graffiti and promise not to do it again? 

The Notice has more bolded black section.  It states that if employees select a union, the employer must bargain in good faith regarding the terms and conditions of employment. The telephone number to contact the NLRB is also bolded. 

The Notice identifies employees' rights to organize, form a union, bargain collectively, discuss the terms and conditions of employment, take action to improve conditions and strike.  The Notice also contains a list of things an employer can't do. 

The Notice ends with an * indicating that the NLRA covers most private-sector employers.  Of course, the Notice is too small to contain an explanation of the NRLB's jurisdiction.  But why sweat the details? 

According to the NLRB, this Notice should have been posted already.  But delays were encounters and the posting date was pushed back.  Courts examined the issue.  One recently said the poster is legitimate and the NLRB can order its posting.  But just a few days ago, another court said nope, the NLRB cannot compel an employer to post the Notice. 

In light of this situation, the NLRB Chairman, Mark Gaston Pearce issued to following statement: 

In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.

In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.

In March, the D.C. District Court found that the agency had the authority to issue the rule. The NLRB supports that decision, but plans to appeal a separate part that raised questions about enforcement mechanisms. The agency disagrees with and will appeal last week’s decision by the South Carolina District Court, which found the NLRB lacked authority to promulgate the rule.

Chairman Mark Gaston Pearce said of the recent decisions, “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.”
I question the NLRB's authority to compel employers to post the Notice.  And I am confident that the NLRB's sentiment that a "genuine service" is provided to employees is not justification for the exercise of jurisdiction. 

We will now wait and watch for the next round in the saga of the NLRB Notice. 

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