Federal Court Rules that NLRB Stepped Over the Line

Apr 13, 2012

Today, a federal district court in South Carolina struck down the National Labor Relation Board's (NLRB) "Notice Posting Rule" which required businesses to post biased notices "explaining" employees' rights to unionize. Conveniently (for organized labor), the lopsided rule did not include balanced information such as employees' rights to decertify unwanted unions, or to refuse to pay union dues used for political purposes, nor did the posting provide information about employees' rights in "right to work" states - like South Carolina. The Chamber filed a lawsuit to challenge the rule in September 2011. 

The U.S. District Court for the District of South Carolina completely agreed with the Chamber that the NLRB had no authority whatsoever to issue the rule.  The court noted that nothing in the National Labor Relations Act (NLRA) "even mentions the issue of notice posting" (emphasis added) - much less compels or even permits the NLRB to issue such a rule. The decision is an important reminder that federal agencies can't ignore the law in order to further partisan agendas. 

Although today's ruling is an important step toward reining in NLRB's recent excesses, the "Notice Posting Rule" is just one part of organized labor's multi-pronged strategy to un-level the playing field to make it easier for unions to organize and harder for employees to get a balanced perspective on the costs of unionizing. We are still waiting for a court decision on the Chamber's lawsuit challenging the NLRB's "Ambush Election" rule, which was designed to push through elections before employers have an opportunity to talk to employees about unionizing. And, of course, the DC Circuit has yet to decide whether the NLRB even has the authority to conduct business, given the dubious nature of the "recess" appointments of three of the five NLRB members (the Chamber has moved to intervene in that case). So stay tuned.

More information about the Notice Posting Rule case can be found on the National Chamber Litigation Center's website.

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