National Association of Manufacturers Files Suit to Enjoin NLRB Notice-Posting Rule
On August 30, 2011,the National Labor Relations Board published a Final Rule requiring private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their rights under the Act. By its terms, the Rule was to become effective November 14, 2011. The National Association of Manufacturers (NAM), however, last Thursday filed suit in the District Court for the District of Columbia, seeking to enjoin the Rule, alleging that it is "in excess of the Board's statutory jurisdiction, authority, limitations and rights."
The introduction to the Complaint tracks the language of Section 706(2)(C) of the Administrative Procedures Act, 5 U.S.C.§§ 701 et seq., which allows a reviewing court to set aside agency actions found to be so. The Complaint highlights the Final Rule's identification of authority as Section 6 of the NLRA, which provides:
The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [by subchapter II of chapter 5 of title 5], such rules and regulations as may be necessary to carry out the provisions of this Act.
NAM's pleadings argue that the Board's Final Rule exceeds this authority in at least four (4) specific ways:
- In that neither Section 6 nor any other sections of the Act expressly grant the Board the authority to require the posting;
- in that neither Section 6 nor any other sections of the Act grant the Board the authority to assert jurisdiction over, or require anything of, any employer absent the filing of a representation petition or unfair labor practice charge;
- in that the Final Rule purports to create a new unfair labor practice -- while unfair labor practices are otherwise expressly enumerated and described in the statute; and
- in that the Final Rule purports to extend the express six-month statute of limitations for filing charges in a manner inconsistent with the express exceptions set forth in the statute.
NAM's suit requests that the District Court enter judgment against the Board declaring that it exceeded its authority by promulgation of the Final Rule. Additional relief requested includes preliminary and permanent injunctions against implementation and enforcement of the Rule.
Employers should follow developments in this case, as absent an injunction, most private sector employers would be required to postthe required Notice in the workplace as of November 14, 2011. No further action has been scheduled by the Court as of this moment, but we will update the blog accordingly as additional information becomes available.
