While court rulings earlier this year put the National Labor Relations Board's (NLRB) workplace poster mandate on ice, an appeal of the National Association of Manufacturers ruling is expected to be heard in the D.C. District Court of Appeals in September. Since these rulings were issued, a number of actions taken in support of the policy both by the agency and those in support of the rule, presenting new challenges for employers and those seeking to curtail the ability of the agency to act as an advocate for labor unions.
The poster rule suffered two setbacks from rulings which barred the agency from mandating employers post a notice that was considered by many to be free advertising for labor unions. In National Association of Manufacturers v. NLRB and Chamber of Commerce v. NLRB, federal courts in Washington D.C. and South Carolina both ruled the agency could not require employers to post such notices.
Earlier this month, a Friend-of-the-Court brief filed by the AFL-CIO, Change to Win, and Professor Charles Morris, a retired professor from the Dedman School of Law at Southern Methodist University in Dallas sought to support the NLRB's push for the employer mandate, arguing the poster and other notification processes were within the scope of the agency's authority and were essential to it's ability to help workers who sought to organize unions in their workplaces. In the brief, they warn that "as union density has declined, the need for workers to have an independent source of information about their rights has never been greater".
The poster rule was the result of an NLRB petition for rule-making filed by Morris in 1993.
Last month, the NLRB rolled out a website which was intended to be a companion resource to the workplace poster. Protected Concerted Activity is aimed to answer questions which the posters might raise among workers who conduct in concerted activity (collusive actions among workers, either union or non-union), but reads as a union advocacy website where visitors are given eleven examples of the types of conduct the NLRB has deemed unlawful under the National Labor Relations Act and descriptions of the actions taken.
It would seem as if the agency views the rulings as injunctions against some of their actions and authority on this matter, but not other areas, and are continuing to implement anything not expressly blocked by the courts. But it's not the only sign the agency intends to pursue a more aggressive agenda of direct and indirect actions to promote labor unions.
The NLRB still faces serious questions to its ability to act in the wake of several lawsuits challenging the authority of the Obama administration to make recess appointments to bypass Senate confirmation of NLRB nominees while Congress was still in session.
Obviously, the poster injunctions haven't stopped the agency from implementing other related parts of the program nor have they stopped organized labor from pushing to overcome the injunction. Those who think this issue is over had better think again and keep on top of this issue.
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