On October 5, the NLRB announced its decision to postpone the requirement that all employers under its jurisdiction post a notice for employees detailing the rights under the NLRA to January 31, 2012. As previously reported here, the NLRB regulations provided that posting was to occur by November 14, 2011.
The NLRB’s stated reason: “to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” This detail-anemic rationale really signifies a sop to the overwhelming opposition to new requirement, which has been challenged in court as exceeding the NLRB’s authority. After all, the NLRB’s regulations don’t require a mere posting of employee rights. Through these new regulations, the NLRB envisions a broader jurisdiction for itself based on its conclusion that a failure to post the notice is, in and of itself, an unfair labor practice, and one that can toll the statute of limitations on other alleged violations of the NLRA. Thus, the failure to post could lay dormant for years, like an anti-personnel mine, until tripped by any number of circumstances, including surprise government inspection or a union’s mere attempt to organize the workforce. The latter event it would seem would make a failure to post the notice unnecessary, but not according to the NLRB.
It will be interesting to see what further ”outreach and education” actually occurs, especially when one gets the sense this NLRB is hard at work trying to issue yet more regulations on quickie elections before December when Member Becker’s term expires. Member Becker’s departure will bring the NLRB down to two members, not enough for the agency to continue to conduct business.
Consider this: the NLRB received about 7,000 comments on the rights poster regulations in December of 2010. It issued the regulations in August, 2011, after eight months of deliberation. For the quickie election proposed rules, the NLRB received over 60,000 comments, which were filed in August. It will be quite a feat in the use of governmental resources if the NLRB decides to rush out regulations on elections by December of this year, a mere three months after receiving comments, the overwhelming majority of which seem to oppose the proposed changes.
As always, we will keep you posted on further developments as they occur.