If the lawsuits of three different business groups are successful, the federal courts will have the last say about the validity of the NLRB’s notice posting rule. The National Association of Manufacturers (NAM), the National Federation of Independent Businesses (NFIB), and the U.S. Chamber of Commerce (Chamber) are each parties in three different lawsuits pending in federal courts seeking injunctions against the NLRB’s rule.
The Chamber’s lawsuit (pdf) is representative of the arguments raised against the notice posting. For example, the Chamber asserts that the NLRA doesn't give the NLRB the authority to promulgate a notice posting rule in the first place. This is one of the arguments that Member Hayes (R) made in his dissent to the notice of proposed rule-making many months ago. The Chamber also asserts, among other things, that the rule is not a balanced view of employee rights under the statute and that it violates employers’ First Amendment right to freedom of speech.
The Chamber’s lawsuit was the most recent one filed, and the Chamber picked South Carolina as the jurisdiction in which to file. The Chamber made an interesting forum choice given the NLRB’s pending complaint against Boeing’s new facility in that state. The NFIB and NAM both filed their complaints in the District of Columbia.
For the labor professional, the progress of these suits will be important to monitor. One or more of the courts could issue a preliminary injunction against the enforcement of the rule. The practical effect of such a development would be to delay the obligation to post the notice the rule requires.