When the National Labor Relations Board (NLRB) issued its final rule requiring most employers under its jurisdiction to post a notice of employee rights under the National Labor Relations Act (NLRA) in the Federal Register on August 30, it intended for the rule to take effect within 75 days: November 14, 2011. A thorough description of the Posting Rule requirements and its applicability to employers can be found in our September 2 alert, which you can find here. However, something funny happened on the way to putting this pro-organized-labor rule into effect, as employer and business groups have questioned and challenged the rule. As a result, employers will not be required to post the NLRB’s notice by November 14, 2011 — and it is possible that pending litigation may cause the Board to withdraw or amend the posting.

On October 5, 2011, the National Labor Relations Board postponed the implementation date for its new notice-posting rule from November 14, 2011 until January 31, 2012 “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”  The NLRB has indicated that “[n]o other changes in the rule, or in the form or content of the notice, will be made.”

On September 10, 2011, the National Association of Manufacturers (NAM) filed a lawsuit in the U.S. District Court for the District of Columbia to stop the NLRB from moving forward with its “Posting Requirement” rule. The lawsuit alleges that the NLRB acted outside of its jurisdiction and should suspend the rule. NAM President and CEO Jay Timmons stated that this requirement “is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses — exerting powers it doesn’t have.”  The National Association of Manufacturers proclaimed that it is committed to fighting this rule in order to rein in the NLRB and is encouraging Congress to take action to curtail the “rogue” actions of the Board.

On September 19, 2011, the U.S. Chamber of Commerce, along with the South Carolina Chamber of Commerce, filed a lawsuit in federal court against the NLRB, claiming that it has no authority to promulgate or enforce its new Posting Rule. In the 18-page complaint, the Chamber of Commerce alleges that the NLRB lacks the statutory authority to impose any of the requirements under the new rule. The suit claims that the National Labor Relations Act only grants the Board authority to administer provisions when:

(1) a representation petition is filed; or
(2) an unfair labor practice charge is filed.

The Chamber complains that the Posting Rule allows the Board to have jurisdiction over employers and to regulate employers and impose penalties upon them without the filing of a representation petition or an unfair labor practice charge. Therefore, the new rule arguably broadens the NLRB’s jurisdiction over employers. The Chamber of Commerce also claims that the NLRB’s new rule violates the six-month statute of limitations explicitly set forth in the act. The Chamber argues that the Posting Rule creates a substantial risk to its members. The Chamber warns that “[a]lthough the Board repeatedly suggests that it will not punish minor or inadvertent infractions severely, the Board has no authority to provide such assurances” because the NLRB’s General Counsel has the authority to enforcement the rule, not the Board.

The Chamber of Commerce also argues that the notification is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” because it excluded a description of employees’ fundamental rights under the Taft-Hartley Act and other right-to-work state statutes that exist in 22 states, arguing that these rights are just as important as those under the NLRA.

Finally, the Chamber of Commerce claims that the Posting Rule violates employers’ First Amendment rights. It argues that the NLRB’s notice “espouses [the Board’s] ideological message through an assertion of employees’ statutory ‘rights’ and employer ‘obligations’” and does not meet the strict scrutiny standard of being narrowly tailored to a compelling governmental interest for such compelled non-commercial speech.

We will continue to monitor the progress of these legal challenges along with all other developments associated with this NLRB regulation.

If you have questions about this new rule or about implementing preventative measures in your business to avoid unfair labor practice charges, please contact  Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com), Richard A. Braden (716.566.5436; rbraden@goldbergsegalla.com); Matthew C. Van Vessem (716.566.5476; mvanvessem@goldbergsegalla.com), or another member of the Goldberg Segalla Labor and Employment Practice Group.