The National Association of Manufacturers (NAM) and the Coalition for a Democratic Workplace (CDW) have filed suit against the National Labor Relations Board, its members and its Acting General Counsel. Why? NAM and CDW seek to declare unlawful the Final Rule entitled “Notification of Employee Rights Under the National Labor Relations Act (the “Rule”). We wrote about the Rule and posting requirement in our September 15, 2011, post Download Your NLRB Poster on Employee Rights Today! Our recommendation for now? Don’t post yet – you may not be required to.
Why not, you might ask? The goal of the lawsuit is to have enforcement of the Rule enjoined and set aside. The basis for the lawsuit (as contained in paragraph 2 of the Amended Complaint) is summarized as follows:
- The “Employee Rights” notices, as framed, “lack neutrality and unfairly encourage and promote unionization.”
- The notice requirement constitutes a “massive, unprecedented and unlawful expansion of the Board’s jurisdiction.”
- The Rule “adversely affects nearly six million businesses by forcing them to promote unionization of their workforces upon pain of otherwise committing an unfair labor practice.” and
- The Board’s promulgation of the Rule exceeds the NLRB’s “statutory jurisdiction, authority, or limitations.”
The Amended Complaint seeks to declare the Rule void on its face, and also seeks preliminary and permanent injunctive relief to “prevent the Board from implementation, enforcement and application of the Rule.” So what does that mean for all employers subject to the Rule? Since the posting requirement takes effect on November 14, 2011, I expect that we will see a motion for a preliminary injunction filed before that time, with a request that NAM and CDW be granted an expedited hearing on that motion.
No motion has been filed to date, but we will keep you posted. In the meantime, you are not required to post anything until November 14th, so stay tuned for our next update!