On Friday, January 13, 2012, a number of business groups, including the National Federation of Independent Business, National Right to Work Foundation, Coalition for a Democratic Workplace, lodged the first legal challenge seeking to block President Barack Obama’s January 4, 2012 recess appointments to the National Labor Relations Board (“NLRB”).

Procedurally, the groups bootstrapped their challenge to a lawsuit pending in the U.S. District Court for the District of Columbia challenging the NLRB’s highly controversial “Notice Posting Rule” that would require businesses to post notices and inform employees right to bargain collectively, distribute union literature, and engage in other union activities without reprisal under the National Labor Relations Act (“NLRA”), which is set become effective April 30, 2012.

As we more fully discussed here on January 6th, the NRLB lost its quorum when former Member Craig Becker’s term expired on January 3, 2012. President Obama then appointed Terence Flynn, Sharon Block, and Richard Griffith to the NLRB. The business groups argue in their motion and accompanying legal memorandum that these appointments are “unconstitutional, null and void,” because they were done while the Senate was in session, leaving no “recess” during which time President Obama could make appointments “without seeking or obtaining the advice and consent of the Senate.” As a result, the NLRB, with only two members, lacks the necessary quorum and ultimately “authority to implement or enforce” the Notice Posting Rule pursuant to New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).Continue Reading And So It Begins: President Obama’s Recess Appointments Face Their First Attacks

We reported earlier about the NLRB notice-posting rule, which was to take effect on November 14, 2011. The rule applies to all companies subject to NLRB jurisdiction. (See discussion below of NLRB jurisdiction.) The rule requires companies to post in the workplace notices to employees about their rights to join a union. Not surprisingly, the proposed rule has generated a great deal of attention and some controversy. Recently, we reported on the first lawsuit, filed by the National Association of Manufacturers, to challenge the NLRB’s right to impose this rule. Since then, a number of other lawsuits have been filed, including lawsuits filed by the U.S. Chamber of Commerce, the National Right to Work Foundation and the National Federation of Independent Business.

Possibly in response to those lawsuits, the NLRB earlier today issued a notice on its web site saying that the posting requirement is now postponed to January 31, 2012. The Board’s stated reason is to allow time for "enhanced education and outreach to employers, particularly those who operate small and medium-sized businesses." Indeed, we have received a number of questions regarding the scope of the posting requirement. For instance, many are asking whether the Board’s posting requirement will apply to a particular company or industry. To put it briefly, just about every company in the private sector outside of a few very specific industries is covered by NLRB jurisdiction. For example, certain employers in the railroad, airline, and agricultural industries and federal, state, and local municipal government entities are not covered by the NLRA. Some religious institutions are not covered. But most employers in all other industries are covered.Continue Reading NLRB Posting Requirement Delay – New Date – January 31, 2012