Another legal challenge to the National Labor Relations Board's (NLRB) rule requiring businesses to tell workers they have the right to unionize has been filed in federal court. In addtition to the National Association of Manufacturers's (NAM) lawsuit filed in Federal District Court, D.C. Division, on September 8, 2011, the U.S. and the South Carolina Chamber of Commerce have filed their own lawsuit in federal court in South Carolina on Tuesday, Sepbermber 20. Will courts take the NLRB's poster down before it even goes up?
Employers were upset with the new final rule issued by the NLRB on August 30, 2011. The Notification of Employee Rights Under the National Labor Relations Act (the Rule) requires all employers subject to the NLRA, which is virtually all private employers regardless of whether their workforce is unionized, to post a notice to employees informing them of their right to organize and providing NLRB contact information and enforcement procedures. This notice may also need to be posted electronically depending on how the employer routinely communicates with its employees.
The NLRB drew its authority to issue such a rule from Section 6, which provides that the NLRB may promulgate "rules and regulations may be necessary to carry out provision of this Act." However, these lawsuits claim that the NLRB exceeded its Section 6 authority by asserting jurisdiction when there is no representation petition or unfair labor practice charge pending against the employer. The lawsuits also argue that the NLRB exceeded its authority by creating a new type of unfair labor practice for failure to post such a notice and creating a tolling of the six month statute of limitations for employees to file unfair labor practice charges against their employer if the employer has filed to post the notice.
Hopefully, there will be some clear direction from the Courts to employers about the requirement to post the notice prior to the Rule's effective date of November 14, 2011.