Postponed Again: NLRB Delays Implementation of Notice-Posting Rule Until April 30, 2012

On the Friday before Christmas, the NLRB’s Office of Public Affairs quietly announced that it was again delaying the implementation of its hotly contested “Notice Posting Rule,” which will require most private sector employers to post an 11-by-17 inch poster informing employees of certain union organizing rights protected by the National Labor Relations Act (“the Act”). The Rule was originally to take effect on November 14, 2011, but a week after the National Association of Manufacturers (“NAM”) and the Coalition for a Democratic Workplace filed a joint motion for a preliminary injunction blocking the Rule, the Board pushed the implementation date back to January 31, 2012. Last Friday, at the request of the federal judge presiding over the NAM case, the Board pushed back the Rule’s effective date until April 30, 2012 to “facilitate the resolution of the legal challenges that have been filed with respect to the rule.”

Although several suits challenging the Board’s new Rule are now on file, the NAM case leads the way by attacking the Rule on four distinct fronts, any of which could result in the rule being declared null and void. The NAM alleges that:

1. The Board exceeded its authority under the Act by issuing the Rule, which is not expressly contemplated under the Act;
2. The Board’s authority under the Act to issue rulings cannot commence without the filing of an unfair labor practice charge or a representation petition;
3. The Rule establishes a new unfair labor practice (failing to post the notice) that is not contemplated by the Act; and
4. The Rule impermissibly extends the Act’s 6-month limitations period by allowing an employee to file an unfair labor practice charge after this period has expired in circumstances where an employer has not posted the notice properly or timely.

A ruling is expected in early 2012. Until then, we will keep you posted.

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NLRB Postpones Date For Required Notice-Posting To January 31, 2012