NLRB Union Poster Rule Struck Down in U.S. District Court

 Judge David Norton of the U.S. District Court of South Carolina ruled that the National Labor Relations Board (NLRB) exceeded its congressional authority when it issued a rule that required employers to post notices that detail workers’ right to unionize, and penalized non-compliant employers.

The NLRB rule requires employers to post an 11×17 inch notice that explains the rights of employees under the National Labor Relations Act (NLRA). The notice, which could be obtained from the NLRB website, stated that employees have the right to act together to:

  • Improve wages and working conditions;
  • Form, join and assist a union;
  • Bargain collectively with their employer; and
  • Refrain from any of these activities.

As is customary, the rule was proposed in the Federal Register and a sixty-day period followed where comments and objections could be submitted to the NLRB. The NLRB received roughly 6,500 comments during that period, and accepted an additional 500 late comments. While the Board made certain concessions, such as removing any requirement that the notice be circulated via email, it ultimately upheld the rule. According to the NLRB, failure to comply with the posting requirements, which have an April 30th deadline, could result in an unfair labor practice charge.

The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce filed a lawsuit against the NLRB in the United States District Court of South Carolina. The lawsuit claims that:

  • Nowhere does the NLRA give the NLRB authority to coerce employers to post such notifications, or to impose onerous penalties for those who fail to post the notices.
  • In violation of the APA, the rule arbitrarily and capriciously excludes from the mandatory notice a description the fundamental rights of employees to be free of compulsory union membership and compulsory union dues.
  • The NLRB violated the RFA by failing to properly assess the significant economic impact the rule would have on small businesses.
  • The rule violates the First Amendment by compelling employers to post the NLRB’s ideological views on unionizing

Judge Norton agreed, noting that “[b]ased on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.” The ruling seems to support the proposition that the NLRB has become overly aggressive with its rulemaking ability. “The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles,” Judge Norton wrote.

The ultimate fate of the NLRB rule is yet to be determined. Private employers and interested parties can find out more about this case by visiting the US Chamber of Commerce and the Hill.

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