Chamber of Commerce Sues to Block NLRB Notice of Rights Rule

The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have announced their filing a complaint against the National Labor Relations Board in the U.S  District Court of South Carolina. The suit  alleges that  NLRB’s final rule on Notification of Employee Rights Under the National Labor Relations Act exceeds the agency’s statutory authority and violates the First Amendment  by “compelling employers to post the NLRB’s ideological views on unionizing.”   The new rule requires employers to post an 11x17 inch notice that summarizes employee rights established under the NLRA. The notice will include the following text:

Under the NLRA, you have the right to:
• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees' own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing. Choose not to do any of these activities, including joining or remaining a member of a union.

At the bottom, the notice states: “This is an official Government Notice and must not be defaced by anyone.”  The notice posting rule will go into effect November 14, 2011. Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act, but the agency describes its anticipated response to such a failure as follows:

The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

When the NLRB issued the rule on August 30, the agency addressed objections to the rule on First Amendment grounds:

[R]equiring a notice of employee rights to be posted does not violate the First Amendment, which protects the freedom of speech. Indeed, this rule does not involve employer speech at all. The government, not the employer, will produce and supply posters informing employees of their legal rights. The government has sole responsibility for the content of those posters, and the poster explicitly states that it is an “official Government Notice”; nothing in the poster is attributed to the employer. In fact, an employer has no obligation beyond putting up this government poster. These same considerations were present in Lake Butler Apparel Co. v. Secretary of Labor, 519 F.2d 84, 89 (5th Cir. 1975), where the Fifth Circuit rejected as “nonsensical” an employer's First Amendment challenge to the Occupational Safety and Health Act requirement that it post an “information sign” similar to the one at issue here. As in Lake Butler, an employer subject to the Board's rule retains the right to “differ with the wisdom of * * * this requirement even to the point * * * of challenging its validity. * * * But the First Amendment which gives him the full right to contest validity to the bitter end cannot justify his refusal to post a notice * * * thought to be essential.”Id.; see also Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309-10 (10th Cir. 1976) (dicta) (rejecting a constitutional challenge to a requirement that an employer post a copy of an OSHA citation).

 But even if the Board's notice-posting requirement is construed to compel employer speech, the Supreme Court has recognized that governments have “substantial leeway in determining appropriate information disclosure requirements for business corporations.”Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 15 n.12 (1985). This discretion is particularly wide when the government requires information disclosures relevant to the employment relationship.

JFB