As we previously reported, the National Labor Relations Board (NLRB or Board) has promulgated a new regulation requiring virtually all private sector employers to post a notice informing their employees of rights under the National Labor Relations Act (NLRA). Initially, the regulation was to become effective on November 14, 2011. However, purportedly for “further education and outreach,” the NLRB has delayed the effective date until January 31, 2012. It is unclear why the Board believes more education and outreach is needed. The regulation was initially proposed in the spring, six months prior to its initial effective date.

In addition to the delay in the effective date of the posting requirement, three lawsuits have been commenced against the NLRB seeking to nullify the regulation. The lawsuits were filed by the U.S. Chamber of Commerce (Chamber), the National Association of Manufacturers and the National Federation of Independent Businesses. The lawsuit commenced by the Chamber sets out the basic claims by each of the entities challenging the regulation. Essentially, the challenges are based on claims that the Board violated the Administrative Procedures Act, the Regulatory Flexibility Act and the First Amendment to the United States Constitution. The challenges are both substantive (the NLRB lacks the authority to issue the regulation) and procedural (the Board failed to follow proper administrative requirements).

The Chamber commenced its lawsuit in Federal District Court in South Carolina. It is a very interesting choice of forum. Most commentators speculate that the Chamber chose South Carolina because of the Board’s pending proceeding against Boeing, in which the NLRB seeks to stop Boeing from operating a manufacturing plant in South Carolina.

The lawsuits have been pending for over a month. Unless one of the Federal Judges issues a temporary restraining order, the regulation is set to become effective on January 31, 2012. Should such a restraining order be issued, we will send out another alert.

In the event the lawsuits fail and the regulation does become effective, employers need to know that they can post their own “counter” notices along side of the NLRB official posting. While the counter notices cannot contradict or dispute the official posting, the counter posting can explain why the employer believes its employees do not need union representation. Employers can remind employees of their open culture and the benefits and compensation they already receive without the need for a union. Employers can also inform their employees the disadvantages of union representation.

Before posting any counter notice, we recommend that you consult with your labor relations attorney regarding posting a counter notice.