The fight over the controversial “Employee Rights” posting requirement has begun in earnest. The National Labor Relations Board announced yesterday that the effective date for the “Employee Rights” posting requirement has been delayed until January 31, 2012. The NLRB cited the need for “enhanced” education and outreach as the reason for the delayed implementation. I found interesting that the press release also mentions that NLRB member Brian Hayes dissented to the promulgation of the rule and agreed with the delay of the effective date, so I checked out his dissenting opinion. It is worth a read.
In his dissent, Brian Hayes voiced strident objection to the adoption of the rule noting that: “Agencies may play the sorcerer’s apprentice but not the sorcerer himself.” (A reference to a 2001 U.S. Supreme Court decision, Alexander v. Sandoval.) He opined that his colleagues had “conjure[d] up a new unfair labor practice based on a new statutory obligation” and that this action was far beyond the broad rulemaking authority of the agency. Member Brian Hayes’ objection centers in part on the fact that the rule “makes the failure to post the required notice a violation of the Act.” The new unfair labor practice.
In his final dissenting comment member Brian Hayes noted “I am confident that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.” This restorative process has already begun. The National Association of Manufacturers’ (NAM) and the Coalition for a Democratic Workplace’s (CDW) recently filed lawsuit seeking to declare the rule unlawful (see my post last week, The NLRB’s “Employee Rights” Posting Requirement – Will it Withstand Judicial Scrutiny?) raises the same concerns noted by Brian Hayes’ dissent. Indeed, the NLRB announcement of the posting requirement delay immediately followed a status conference with Judge Amy Berman Jackson in the NAM/CDW litigation – the details of which are not yet publicly available.
However, a motion for a preliminary injunction has already been filed by the NAM and CDW, and the case has been consolidated with yet another lawsuit against the NLRB brought by the National Right to Work Legal Defense and Education Foundation, Inc., the National Federation of Independent Business, and Southeast Sealing, Inc., and Racquetball Centers, Inc. d/b/a Lehigh Valley Racquet & 24-7 Fitness Clubs seeking to enjoin enforcement of the rule.
Will the federal district court in the NAM and CDW lawsuit “restore the law?” We will keep you posted as the judge considers the parties’ respective positions. For now? No need to hang your “Employee Rights” posters just yet.