On August 25, 2011, the National Labor Relations Board ("NLRB") issued its Notice Posting Rule requiring employers subject to the National Labor Relations Act ("Act") to post notices informing their employees of their rights under the Act.
Since then, at least three lawsuits challenging the validity of the Rule and the NLRB's authority to issue it have been filed. As well, Congressman Quayle on September 2, 2011 introduced a bill (H.R. 2833) to repeal the Rule. As of October 5, the proposed Employee Workplace Freedom Act had 52 co-sponsors and is pending before the House Committee on Education and the Workforce.
Possibly in reaction to such pushback, but ostensibly on account of uncertainty as to what employers would be covered and in the interest of ensuring broad voluntary compliance, the NLRB has now postponed the compliance deadline for this Notice Posting Rule more than two months, from November 14, 2011 to January 31, 2012. The first lawsuit challenging the Rule was filed on September 8, 2011, by the National Association of Manufacturers, seeking to enjoin implementation of the Rule. A second action was filed on September 16 by the National Right to Work Legal Defense and Education Foundation, together with the National Federation of Independent Business and two small businesses. The third suit was filed on September 19 by the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce. A ruling by the federal courts in one or more of these actions could come before the Rule's new effective date.
All three lawsuits assert that, although the Act permits the NLRB to issue necessary regulations, such statutory authority does not extend beyond requiring notices pursuant to representation cases or in connection with unfair labor practice proceedings. In addition, the U.S. Chamber of Commerce lawsuit alleges that the Rule violates the First Amendment to the U.S. Constitution by compelling an employer to espouse ideological views with which it may disagree.