This past fall we wrote about a new National Labor Relations Board (“NLRB”) notice-posting mandate, which requires employers to post an oversized Notice of Employee Rights in the workplace. This poster is intended to inform employees of their rights to unionize. Action is not yet needed. Although slated for a November 14, 2011 effective date, the Board originally delayed the poster until January 2012, “to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” However, legal challenges to the new rule have arisen and remain unresolved, so the effective date is delayed again —this time until April 30, 2012. In its press statement, the NLRB explained that the April release will “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” This also conforms to the request of the Judge Amy Berman Jackson, who is hearing the consolidated federal case challenging this rule.
Groups as varied as the Motor & Equipment Manufacturers Association, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have lodged legal challenges to the new poster. The Motor & Equipment Manufacturers Association, for instance, argues the poster violates section 8(c) of the 1947 Taft-Hartley Act, a key employer-friendly amendment to the National Labor Relations Act. Section 8(c) prevents the NLRB from attempting to take away employers’ rights to free speech even when unfair labor practices were also found. Other claims include that the new notice-posting mandate unlawfully compels employers to promote the NLRB’s agenda and infringes upon the free speech rights in the United States Constitution, which protect employers from being compelled to deliver the Government’s message. Despite these challenges, the NLRB claims all of these issues will be resolved by the updated April 30, 2012 effective date.
In other NLRB news, President Obama made three recess appointments to the Board, two Democrats and one Republican. The new members are Sharon Block, previously the Deputy Assistant Secretary for Congressional Affairs at the Department of Labor; Richard Griffin, an attorney for labor unions such as the AFL-CIO and the International Union of Operating Engineers; and Terrence F. Flynn, a lawyer who specializes in the NLRB’s guiding law, the National Labor Relations Act.
Brody and Associates regularly advises its clients on all labor management issues and provides various training programs. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
