The National Labor Relations Board (Board) rule requiring private employers to post a notice informing employees of their rights under the National Labor Relations Act (Act) has been struck down by a federal appeals court. Nat'l Ass'n of Mfrs v. NLRB, +2013 U.S. App. LEXIS 9231 (D.C. Cir. May 7, 2013).
The Court of Appeals for the District of Columbia found the rule violated employers' right to free speech by compelling them to provide information concerning unionization, collective bargaining and other NLRA-protected activity without any reference to other rights such as the right to decertify a union or refuse to pay dues in a right-to-work state.
Specifically, the court found that the rule violates Section 8(c) of the Act which provides employers the right to speech as long as it does not contain a threat of reprisal or promise of benefit. The court reasoned that because Section 8(c) gives employers such a right, it also therefore provides employers the right to stay silent. As a result, the court determined that the rule violates Section 8(c) because it makes the failure to post the notice, i.e., the right to stay silent, an unfair labor practice or evidence of anti-union animus in other unfair labor practice matters. After addressing and striking down the other means by which the Board would have enforced the rule, the court invalidated the entire rule.
Notably, the court also addressed the controversial Noel Canning decision and whether the Board had the authority from the outset to issue the notice-posting rule. To the extent that the Noel Canning decision applied, the court determined that although the appointment of NLRB member Craig Becker, a recess appointee, who was involved in the promulgating of the rule, was constitutionally invalid, the Board nonetheless had the authority to act because it had three other members at the time the Board filed the rule with the Office of the Federal Register. The court, therefore, focused on the fact that the Board had a quorum as determined under Noel Canning at the time of filing and disregarded the state of the Board between the filing and the publication of the rule.
The notice-posting rule faced numerous legal challenges across the country shortly after it was promulgated in 2011, and the Board voluntarily postponed its implementation until April 30, 2012. This same court granted an injunction in April 2012 thereby ordering the NLRB to postpone the implementation of the rule pending the outcome of this appeal. Despite this court of appeals' decision invalidating the rule, employers should still monitor the situation since the issue is still on appeal in South Carolina's Fourth Circuit. The Board has stated that it will not implement the rule until all the related legal challenges have been resolved.
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