NLRB'S Notice Posting Rule Invalidated By DC Court Of Appeals

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This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Practice Group.

On May 7, 2013, a three-member panel of the U.S. Court of Appeals for the DC Circuit vacated the NLRB's Notice Posting Rule, originally issued by the Board in August 2011. The Rule required that virtually all private-sector employers post a Notice to Employees, informing employees of various rights under the National Labor Relations Act (Act), such as the rights to engage in union organizing, form or join a union, and strike. The Notice also described various actions by employers or unions that would be illegal under the Act.

The Rule was immediately subject to legal challenge. Notably, the National Association of Manufacturers (NAM) challenged the validity of the Rule in the U.S. District Court for the District of Columbia. In March 2012, the District Court struck down several provisions concerning how the Rule would be enforced by the Board but ultimately held that the Board did have legal authority to promulgate the Rule. Thereafter, NAM appealed the District Court's decision to the D.C. Court of Appeals. Meanwhile, another federal District Court, in South Carolina, had vacated the Rule in its entirety in April 2012. The NLRB appealed that decision to the Fourth Circuit Court of Appeals, where it remains pending at this time.

The DC Circuit's May 7 opinion in National Association of Manufacturers, et al. v. NLRB vacating the Rule was premised on what the Court deemed to be unlawful provisions for enforcement of the Rule against employers. Specifically, the Board had designated three enforcement mechanisms: (1) an employer who failed to post the Notice would be committing an unfair labor practice, (2) an employer's failure to post the Notice would be evidence of anti-union animus in cases involving employer motivation, such as discharges or refusals to hire, and (3) failure to post would toll the Act's six months limitations period for filing an unfair labor practice charge.

Judge Randolf, writing for the Court, concentrated most of his opinion on employer "free speech" rights, stating that Section 8(c) of the Act protects not just an employer's right to state its opinion on whether its employees should unionize, but also protects "the right of employers (and unions) not to speak." The Court held that enforcement of the NLRB's Rule would impermissibly force employers to speak to its employees about topics they might prefer not to address, e.g., employees' rights to unionize, picket, strike, etc. All three of the Rule's enforcement provisions were struck down by the Court, with Judge Randolf concluding that the Rule (whether or not it was lawfully promulgated) could not stand if there was no lawful way to enforce it. Judges Brown and Henderson, writing a separate but concurring opinion, went even further than Judge Randolf and found no statutory authority for the Board to promulgate the Rule, even aside from the Rule's unlawful enforcement mechanisms.

In light of the Court’s decision, the Rule remains invalid, and employers throughout the country are, for the time being, relieved of any obligation to post the Notice. Like any disappointed litigant, the Board must now decide whether to appeal the DC Circuit Court's Opinion. Already pending at the U.S. Supreme Court is the Board's request to appeal from the DC Circuit’s decision in Noel Canning v. NLRB. In Noel Canning, the DC Court of Appeals found that President Obama acted unconstitutionally by making three so-called “recess” appointments to the Board in 2012. Because of these unconstitutional appointments, the Court held that all of the Board’s decisions since January 2012 were null and void. 

Suffice it to say, it has not been a pleasant Spring for the President's extremely pro-union appointees at the Board!