We Don’t Have to Post No Notices,|Chamber of Commerce Tells NLRB

CHARLESTON, S.C. (CN) - Continuing a campaign against the National Labor Relations Board that began with similar lawsuits in Washington, D.C., the U.S. Chamber of Commerce claims the NLRB cannot force employers to post notices in the workplace informing employees of their right to unionize. The rule, which was published in the Federal Register in December 2010, is to take effect on Nov. 14.

Manufacturers and right-to-work groups already have challenged the law in District of Columbia Federal Court.

In a new federal lawsuit, the U.S. Chamber and its South Carolina chapter claim the NLRB failed to perform an Initial Regulatory Flexibility Analysis before seeking public comment on the new rule.

The Chamber disagrees with the NLRB's statement that the rule "would not have a substantial economic impact on a substantial number of small entities."

"The NLRB received more than 7,000 comments on the proposed rule," the Chamber says. "Most comments opposed promulgation of a final rule," but the NLRB approved it anyway.

The rule requires employers to post notices to employees in conspicuous places, informing them of the right to unionize, with NLRB contact information and information on the agency's basic enforcement procedures.

"Failure [by employers] to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA," according to the complaint. (Brackets in complaint; the NLRA is the National Labor Relations Act.)

The complaint states: "Unless enjoined, the Notification Rule will cause immediate, irreparable damage to plaintiffs and their members. Such damage includes, but is not limited to, the following: forcing plaintiffs and their members to incur substantial monetary costs; damaging the relationships that plaintiffs and their members have with their employees; and hampering the ability of plaintiffs and their members to engage in normal business activities.

"In addition, the Notification Rule creates a substantial risk that plaintiffs and their members could suffer all of the punitive sanctions set forth in the Notification Rule for minor or inadvertent violations. Plaintiffs' members include many small entities who lack internal legal counsel or dedicated human resources professionals. If these entities fail to post the mandated notice through simple inadvertence or lack of knowledge of the Rule, they could nevertheless be found guilty of an unfair labor practice and suffer the other punitive sanctions set forth in the Rule. Although the Board repeatedly suggests that it will not punish minor or inadvertent infractions severely, the Board has no authority to provide such assurances because section 3(d) of the NLRA vests enforcement authority in the Board's General Counsel."

The Chamber also objects that the rule will let employees scoot around the statute of limitations for unfair labor complaints: "Section 102.214(a) of the Rule provides for the tolling of the statute of limitations for unfair labor practice charges. Section 102.214(a) provides, in pertinent part, that '[w]hen an employee files an unfair labor practice charge, the Board may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct if the employer has failed to post the required employee notice unless the employee has received actual or constructive notice that the conduct complained of is unlawful.'"

But The Chamber says: "The NLRB lacks the statutory authority to impose any of these requirements. Neither section 6 of the NLRA, nor any other provision of the NLRA, grants the NLRB the authority to require employers to post such a notification, to create and promulgate a new unfair labor practice where an employer covered under the NLRA fails to post a Notice, or to toll the statute of limitations."

South Carolina has been roiled by a lawsuit the NLRB filed against Boeing, alleging labor law violations at its new facility in North Charleston. The NLRB sued Boeing in April, claiming the aircraft maker built its new 787 assembly plant at a nonunion site in South Carolina as an illegal form of payback against International Association of Machinists and Aerospace Workers, for its strikes in Washington state.

The NLRB wants to move the jobs back to the Seattle area. Boeing insists it did nothing wrong in choosing a new site for a second assembly line for the 787, the first passenger aircraft made almost entirely of composite materials.

The Chamber seeks a declaration that the NLRB exceeded its authority in promulgating the rule, violating federal labor and regulatory laws and the First Amendment in the process.

It wants the rule declared null and void, and the NLRB enjoined from enforcing it.

The Chamber is represented by Luci L. Nelson with Ogletree, Deakins, Nash, Smoak & Stewart.

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