New Union Rights Notice Mandate Faces Challenges in Court

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The U.S. Chamber’s lawsuit argues that the NLRB’s poster requirement violates federal labor and regulatory laws, as well as the First Amendment. The lawsuit argues that:

• The NLRB does not have authority to coerce employers to post such notices.

• The mandatory notice arbitrarily excludes an adequate description of the fundamental rights of employees to be free from compulsory union membership and union dues.

• The NLRB failed to properly assess the significant impact the new requirement would have on small businesses.

• The mandatory notice violates the First Amendment by compelling employers to post the NLRB’s ideological views about unionization.

On September 28, the National Federation of Independent Business (NFIB) asked a federal court to temporarily enjoin the NLRB from enforcing the rule until the court has ruled on its legality.

NFIB’s lawsuit charges that NLRB’s posting rule is an overreach of statutory authority under the NLRA. Moreover, NFIB estimates the rule will have an impact on up to 6 million private-sector businesses around the country.

Small businesses are particularly vulnerable to accidental violations, the NFIB contends, as the regulatory compliance burden most often falls on the small business owner and small businesses don’t have dedicated compliance staff.

In addition to these lawsuits, the California Chamber of Commerce has submitted a letter asking the NLRB to at least delay implementation of the notice requirement to January 1, 2012.

Poster Still Required

The legal challenges have not halted the current status of the rule. Employers should assume they will be required to comply with the posting requirement and post the notice on or before November 14, 2011.