Late in August, the National Labor Relations Board (NLRB) finalized a rule that would require all employers subject to the National Labor Relations Act (NLRA) to post a notice in their workplaces outlining rights to organize. On September 8, the NAM filed suit against the Board claiming the NLRA does not give them the authority to require all employers to do anything. On Saturday afternoon, December 2, the Board sent a memo to their regional offices instructing them to prepare an outreach campaign to inform businesses of the requirement to post notices in their workplace on or before January 31, 2012.
While the Board has claimed, and continues to do so, the delay in the effective date of the rule has nothing to do with the litigation, and everything to do with wanting to conduct more extensive outreach, the facts and the truth demonstrate otherwise.
Upon filing the suit, the NAM requested the Board delay the effective date until such time as the matter could be decided by the courts – the Board declined to delay. At a status conference with the Court, Judge Jackson inquired whether the Board would delay the effective date of the Rule in order to give the Court sufficient time to consider the arguments in the case and make a ruling. The Board wisely agreed to delay and formally announced the effective date would be moved from November 14, 2011 to January 31, 2012. In the announcement, no mention of the lawsuit was acknowledged. In the December 2 memo there was no mention of the lawsuit either, despite the fact the Board could lose the case, rendering the January 31 effective date, null and void.
It’s understandable that the Board would not want to admit they’ve over-reached by issuing the rule, but their actions are akin to a beat-cop waving pedestrians by an escalating fight yelling, “Move along, nothing to see here.” A federal agency claiming authority it doesn’t have and acting as though there’s nothing wrong with it may be comical in theater, but it’s a potential catastrophe in practice. That’s why the NAM filed the suit against the NLRB to prevent an agency from acting outside the law and also why the NAM sent a letter to the Board today indicating our displeasure with how they’ve proceeded.
Oral arguments are on Monday, December 19 in federal court and a decision is expected before the new effective date of January 31. Since this is the time we all begin thinking about our resolutions for the new year, perhaps the Board can resolve itself to act in a more even-handed manner and follow the law.
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