Enough's enough: Employer groups join together to fight NLRB poster rule

From: Ohio Employment Law Letter | 11/01/2011
Editors: Bradd N. Siegel and Fred G. Pressley, Jr.


Several high-profile business advocacy organizations - including the U.S. Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Business - have each sued to stop a new rule from the National Labor Relations Board (NLRB) requiring employers to post notices telling employees they have the right to unionize. The requirement takes effect January 31, 2012.

The NLRB has been agenda-driven for decades, tilting toward workers when Democrats were in the White House and toward employers in Republican administrations. The three recent lawsuits over the notice requirement, however, seem to be a collective shout of frustration over the current Board's actions.

Boeing's bad dream

This year, for example, the NLRB sued Boeing over its decision to start a new production line for its next-generation Dreamliner aircraft in right- to-work South Carolina rather than in unionized Washington. The Board claims the company acted to punish workers in Washington for exercising their protected right to strike. It wants Boeing to return the work to Washington even after the manufacturer has already hired employees in South Carolina and begun building a $750 million facility. Boeing denies the charges and maintains its decision was driven by economics. While the litigation proceeds, politicians and businesses are screaming bloody murder.

The U.S. House of Representatives has passed a measure that would forbid the NLRB from requiring a company to shut down or move a facility even if it broke the law. And the Politico website reports that in the Senate, Republicans are trying to build support for a rider to the NLRB budget that would stop the agency from doing anything to threaten the South Carolina plant.

The U.S. Chamber of Commerce, in fact, chose to sue in federal court in South Carolina over the union-rights poster rule. It says the choice of court had no connection to the brouhaha over Boeing, but it does underscore building resentment toward the NLRB.

The National Federation of Independent Business, for example, said in a news release on the poster rule that the NLRB "has gone too far, passing a mandate that vastly exceeds its authority" at the expense of small businesses. Moreover, it and thousands of members are "standing up against the anti-business attitude that is reflected in actions of Washington's regulators. It is truly a wonder why the government continues to treat job creators as the bad guys."

What's on the poster

The poster requirement goes into effect January 31, 2012. The NLRB originally set the effective date for November 14, but the Board has decided to move that date back to allow for more education and outreach to employers. Under the requirement, most private-sector employers must post a notice telling employees they have the right to form and join unions, bargain collectively, and engage in other protected concerted activities - or refrain from engaging in them. The poster outlines both specific rights and prohibited conduct for both employees and employers. The poster will be provided free of charge by regional NLRB offices and is available for downloading from the NLRB website.

Although posting a boilerplate-type notice may seem innocuous to some, the lawsuits raise a host of arguments against the rule - and possibly against future NLRB directives as well.

Why the rights rule is wrong

Here are the main arguments business groups are making in their lawsuits:

1.The NLRB has no authority to require the employee-rights poster for two reasons. First, the National Labor Relations Act (NLRA) doesn't specifically authorize it but simply allows the Board to issue rules as needed to accomplish the purposes of the Act. Second, the employers say the NLRB can require notices to be posted only if an election petition has been filed or the employer has committed an unfair labor practice.

2.The rule contradicts parts of the NLRA, in effect amending the law without having to go through Congress. In particular, employers say that with the rule, the NLRB is creating a new type of unfair labor practice without authority to do so and is extending the statute of limitations for an unfair labor practice in conflict with what the Act says.

3.The rule violates employers' free-speech rights - namely, their right to refrain from speaking - because it forces them to make statements they wouldn't choose to make.

4.The NLRB downplayed the economic effect of the rule on employers and consequently didn't prepare a required analysis of how small businesses would be affected. Failing to do the analysis invalidates the rule, the employers say.

Perhaps the next fight

The next directive from the NLRB may be a final rule on its procedures for conducting secret-ballot elections over union representation. The proposed rules, issued over the summer, would mandate so-called "quickie" elections and give employers little time to effectively oppose unionization. They'd also require employers to give employee phone numbers and e-mail addresses to union organizers along with the currently required names and home addresses, making it easier for unions to contact employees. Expect a fight in which employers may reemploy many of the reasons they used to fight the poster rule.