Following its announcement of a Final Rule requiring employers to post a notice of workplace employee rights under the National Labor Relations Act, the National Labor Relations Board (NLRB) has issued the official poster. The poster, which employers are required to post effective November 14, 2011, is now available for download at the NLRB Web site. To read Ballard Spahr’s August 29 alert on the Final Rule, click here.

In addition, the National Association of Manufacturers (NAM) has filed a lawsuit in federal court challenging the legality of the new notice-posting Rule. NAM’s complaint in the lawsuit, filed in the U.S. District Court for the District of Columbia on September 8, alleges that the NLRB is acting beyond its jurisdiction and asks the court to set aside the new Rule in its entirety. NAM asserts that:

  • The NLRA does not expressly provide for the issuance of the notice posting rule. In doing so, the Board is acting beyond its powers.
  • The NLRB’s jurisdiction to administer the Act is contingent upon a representation petition or unfair labor practice charge being filed. Absent that, the Board cannot order an employer to post a notice to employees under the Act.
  • The NLRB has no authority to create a new type of unfair labor practice claim, failure to post the required notice.
  • The NLRB has no authority to toll the statute of limitations for filing an unfair labor practice charge as a result of failure to post a notice, one of the provisions of the new Rule. NAM reasons that, because the statute lays out a specific tolling provision that recognizes military service as a justification for tolling, the NLRB is barred from creating other means of doing so.

NAM seeks a preliminary and permanent injunction of enforcement of the Rule and a declaration that the Rule is null and void, and that the NLRB exceeded its authority by issuing the Rule. The National Federation of Independent Business has filed a similar lawsuit in the same court. The court has not yet issued a ruling in either case.

Ballard Spahr’s Labor and Employment Group routinely assists employers in complying with the National Labor Relations Act and responding to charges of violations. Additionally, the Group has extensive experience in counseling employers facing union organizing campaigns.


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