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New Labor Rule Sparks Lawsuits, Delay

Thursday, December 15, 2011

More items for Program/Project Management

Slammed by multiple lawsuits in the matter, the National Labor Relations Board has postponed the implementation of a new rule that requires employers to notify employees of their union rights.

NLRB

Business groups say the National Labor Relations Board overstepped the authority of the1935 National Labor Relations Act in issuing its latest rule.

The NLRB’s Notification of Employee Rights, issued Aug. 30, requires all employers that are subject to the National Labor Relations Act to display a poster advising workers of their rights to organize.

The 11-by-17-inch notice must be displayed in “conspicuous places, including all places where notices to employees are customarily posted,” according to the rule. Failure to post the notice adequately will be considered an unfair labor practice.

Information or Promotion?

The notice states that employees have the right to act together to improve wages and working conditions; to form, join and assist a union; to bargain collectively with their employer; to strike or picket, under certain circumstances; and to refrain from any of these activities.

“The [NLRB] believes that many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute,” the rule says.

“A beneficial side effect may well be the promotion of statutory compliance by employers and unions.”

Authority Challenged

The 194-page rule was to have taken effect Nov. 14, but the National Association of Manufacturers filed suit Sept. 8 in U.S. District Court in Washington, challenging the rule’s legality. Other business groups, including the U.S. Chamber of Congress, later joined the NAM suit or filed their own.

NAM’s suit alleges that the NLRA does not “contain any provisions expressly granting the Board the authority to promulgate and issue a specific rule requiring employers to post a notification of employee rights under the NLRA.”

“The Rule therefore has been promulgated in excess of the Board’s statutory authority under the NLRA,” the suit says.

NAM also contends that the rule unlawfully creates a new unfair labor practice that is not among those specifically enumerated in the 1935 NLRA.

Announcement Draws Anger

Shortly after the litigation was filed, NLRB announced that it was postponing implementation of the rule “to allow for enhanced education and outreach to employers.”

The decision to delay “followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction,” NLRB announced.

However, the announcement did not mention any of the legal challenges to the rule or note that the delayed decision stemmed from the litigation—an omission that drew NAM’s anger Wednesday (Dec. 14) in a letter to the NLRB.

‘Premature, Confusing and Harmful’

The letter criticizes the NLRB’s announced plan to proactively “educate” employers about the rule while it is being challenged—and may yet be overturned—as “premature, confusing and harmful to employers.”

NAM asked that NLRB to postpone “any active outreach” on the rule while litigation is pending and to note the pending litigation in any future public communications on the matter.

Oral arguments in the case are set for Monday (Dec. 19).