NLRB Punts on Poster

06 October 2011 Publication
Author(s): Mark J. Neuberger Gregory W. McClune

Legal News Alert: Labor & Employment

In a surprise announcement on October 5, 2011, the NLRB postponed the implementation date for its new notice-posting rule by more than two months. In August 2011, the Board announced it would require all companies covered by the National Labor Relations Act to put up the poster by November 14, 2011. The posting, among other things, would advise employees they have the right to join a union. It is important to note, most private-sector employers would be required to put up the poster regardless of whether or not any of their employees are represented by a union. Only agricultural, railroad, and airline employers, as well as very small employers that conduct an insufficient volume of business, would be excluded. In addition, employers not covered by the NLRA, such as public-sector entities, also are not covered. Under the rule, an employer who fails to put up the poster would be guilty of an unfair labor practice.

The new effective date to put up the poster is now January 31, 2012.

According to the NLRB’s press release announcing the delay in implementation, “The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.”

The Board’s rationale for this delay seems at least questionable since we are not aware of any significant “uncertainty about which businesses fall under the Board’s jurisdiction” and this has not been an unsettled area of the law. Indeed, some business commentators contend that the Board’s decision to delay implementation is not for the stated reasons but is linked to lawsuits that have been filed by two employer organizations. In September 2011, the National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce filed separate lawsuits challenging the authority of the NLRB to require such a posting. The NAM is seeking an injunction to prevent the implementation of the poster rule. A court hearing on their injunction is scheduled for December 19, 2011, which means the court would likely rule before the new extended implementation date of January 31, 2012.

Our readers should pay close attention to future updates as we track developments concerning the poster.


Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this update or would like to discuss this topic further, please contact your Foley attorney or the following:

Mark J. Neuberger
Miami, Florida

Gregory W. McClune
San Francisco, California

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