Posting requirement rule Archives - Shopfloor

NLRB Website ‘Hanging Tough’ with Poster Rule

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Is it possible for an entire federal agency to be in denial? The National Labor Relations Board has been rebuked, rebuffed and reminded by the Courts that its powers are not limitless. Yet, the Board remains curiously silent about the ruling last week that served as a body-blow to an agency that just two years ago was sticking out its chest and poking its proverbial bully-finger at businesses.

The NLRB website still has a page dedicated to an out-of-date poster with no mention of the fact that it has been rejected by the Courts. It’s like returning to your parents’ home and finding they still haven’t torn down the New Kids on the Block poster in your sister’s room. It’s kind of cute, but also a little discomforting. It might be time for the Board to acknowledge its poster idea was ill-conceived and take it down once and for all.

NLRB Authority Does Have Limits

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Yesterday, the U.S. Court of Appeals for the DC Circuit announced its ruling in a case the NAM filed with regard to posting notices in the workplace. The legal questions raised by the Board issuing a rule proactively regulating virtually every employer in the country are unique in some ways and very simple in others.

During oral argument before the Court of Appeals, one judge asked the attorney representing the Board a basic question. What, if any, limits are there on the NLRB’s authority? The attorney quickly – and shockingly – responded that in the Board’s view there are no limits to their power. Yesterday, the Court issued a strong rebuke to that line of thinking and highlighted the shaky ground the NLRB is on with regard to its agenda.

In the four-page concurring opinion, Judges Henderson and Brown stated: “And the Congress, in enacting the NLRA, prescribed that the Board use reactive means to enforce its policies – namely, through an unfair labor practice proceeding initiated by a charging party or by resolving representations and election issues when so petitioned by a party.” (Emphasis in original) In concluding the concurring opinion, Judge Henderson wrote, “In sum, given the Act’s language and structure are manifestly remedial, I do not believe Congress intended to authorize a regulation so aggressively prophylactic as the posting rule.”

The NAM agrees, which is why the lawsuit was filed. The ruling and concurring opinion released yesterday were spot on – and now the Board has been put on the spot. Do they double-down and petition the Supreme Court or do they finally acknowledge there are limits to the power they wield?

NAM Appeal of NLRB Overreach Moves Forward

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Today, the NAM filed its opening brief on the appeal of the U.S. District Court’s decision on the Notice Posting case against the NLRB.  The NAM believes the NLRB lacks the authority to require all employers to put up a poster of employees’ rights.

The judge in the U.S. District Court, however, did not find in favor of the NAM’s argument and held the poster requirement was valid under the Board’s authority to require the poster.  The NAM immediately appealed this decision to the U.S. Court of Appeals for the D.C. Circuit and also filed an injunction motion to prevent the rule from taking effect on April 30.  On April 17, the NAM was victorious in winning the injunction motion and preventing the rule from going into effect until the appeal is decided.

In the brief filed this afternoon, the NAM argues the U.S. District Court erred in its finding that the Board has the authority to require employers to put up a poster.  The NAM points to the legislative intent of the National Labor Relations Act (NLRA), showing Congress never intended to give the NLRB broad rule-making authority outside of unfair labor practice remedies or representation proceedings.

In fact, the legislative history shows when the Act was amended, the inclusion of a notice posting requirement was rejected by Congress.  Congress, however, included similar provisions in other labor-related laws passed before and after the NLRA.  Why would Congress reject an amendment to the NLRA if they wanted the NLRB to have this authority?  It is clear to the NAM and the answer is simple, Congress never intended for the Board to have the authority to require employers to do something or put something up on a wall.  We hope the Appeals Court sees this as clearly as the NAM does.

Breaking News – NYT Supports Big Government, Big Labor.

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I hope you’re sitting down while you’re reading this because I’ve got some shocking news. The New York Times ran an editorial today supporting the big government agenda being executed by the National Labor Relations Board (NLRB). The NAM is listed as the lead boogeyman opposing the Board’s overreach in the posting requirement rule.

Unsurprisingly the Times completely misses the point about the NAM’s lawsuit against the Board. They minimize the harmful precedent the posting requirement sets, and much like the NLRB, the Times does it’s best to ignore Congressional intent and decades of existing labor law. As Jay Timmons, the NAM’s President and CEO, has noted, the posting rule represents “an unprecedented attempt by the Board to assert power and authority it does not possess.”

In reality, objective observers understand that this lawsuit is fundamentally about putting an end to the NLRB’s radical agenda that threatens long-term harm to workplace relations and the NAM is proud to lead the charge against it. When you disagree with New York Times about labor policy, you must be doing something right.

South Carolina Court Strikes Down NLRB Poster Rule

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On Friday the Circuit Court in South Carolina has issued a ruling in a second lawsuit regarding the National Labor Relations Board (NLRB) posting notice rule. The Court ruled the NLRB does NOT have the authority to require all employers to post a notice in the workplace.

The NAM filed the first lawsuit against the posting notice regulation in DC Circuit Court presenting the same arguments, but the judge ruled the Board can require employers to post notices. The NAM and Coalition for a Democratic Workplace have appealed this ruling and requested postponing the effective date of the rule pending appeal.

The decision in the South Carolina suit means the Circuits are split and the chances for a delay in the effective date of the posting notice regulation have increased. The NAM has filed for an injunction to delay implementation before the effective date of April 30th. Previously we have gained two voluntary delays from the NLRB. We will continue to closely monitor the situation as the NAM appeal moves forward and the implementation date approaches.

NLRB Delays Posting Requirement

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Earlier this afternoon the National Labor Relations Board (NLRB) announced it will be delaying the posting requirement rule until April 30, 2012. This move was made as a result of the lawsuit filed by the National Association of Manufacturers on the validity of the rule.

Earlier this week oral arguments were made in federal court in Washington on the case. The delay is positive news for manufacturers and the effort to rein in the NLRB’s aggressive agenda.

The NLRB continues to move forward with an concerning agenda that will hurt manufacturers competitiveness. From the complaint against Boeing, to the Ambush Elections rule, the posting requirement and the Specialty Healthcare case the NLRB is creating an uncertain environment for job creators and needs to held accountable.