Manufacturers are frustrated by recent actions taken by the National Labor Relations Board that will have far reaching effects on employees, employers and job creators.  Among these, is a Final Rule issued in late August requiring employers to post a notice advising employees of their rights under the National Labor Relations Act. 

From the outset, the NAM has questioned the Board’s authority under the National Labor Relations Act to compel all employers to do anything. On September 8, the NAM filed a lawsuit against the NLRB in U.S. District Court stating the law does not permit the Board to issue such a rule.  The rule would require all employers to post the notice on or before November 14. The NAM strongly believes the Board has overstepped its legal authority in issuing this rule and the overreach must be challenged.

The effective date of November 14 is fast approaching and there is no guarantee the court will rule on the case prior to the rule going into effect.  As a result, the NAM filed a motion for preliminary injunction with the Court yesterday.  The NAM is asking the Court to prevent the rule from taking effect until it decides on the lawsuit. 

If the NAM motion is successful, the November 14 date would be pushed to a date to be determined.  The NAM believes a preliminary injunction is the prudent decision in this circumstance to avoid the potential for confusion about whether employers need to comply and when. 

The NAM has stressed the point over and over again that the level of uncertainty in our regulatory environment is stifling job creation and economic growth. The NLRB clearly cannot see the negative effects its rulings and rulemaking have on employers and employees, but more troubling is the fact that the Board is asserting powers it doesn’t possess and circumventing Congress’ jurisdiction and oversight.

This autumn is sure to bring us more examples of the Board stretching its power and imposing its bias on employers around the country, but recess appointments end at some point. The Board currently has three members, one of whom is a recess-appointee, Craig Becker. His appointment ends on December 31, 2011. When there are only two members, the Board will be unable to act.

So, we wait for the Court to rule on our preliminary injunction to provide some sense of certainty on this issue, but it represents just the beginning of the NAM’s efforts to rein in a Board that is destabilizing American business. We also know, barring another recess appointment, these are the last gasps of a Board more radical than any we have ever seen. As the inimitable poet-singer Jim Morrison sang, “The future’s uncertain and the end is always near.” Stay tuned for developments.

Joe Trauger is vice president of human resources policy, National Association of Manufacturers.