Thursday, May 9, 2013

The NLRB Took It In The Shorts ... Again

The National Labor Relations Board (Board) has not been lucky in court.  Just two days ago the DC Circuit Court of Appeal held that the Board's posting rule was unlawful.  Issued in August 2011, the Board's posting rule required private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act.  The notice was on 11 x 17 poster board with large bold letters Employee Rights.  The notice instructed employees of their right to form or join a union, engage in concerted activity and strike.  The notice also instructed workers what actions the Board deemed illegal for employers to do.  (Yes, in bold language.)  Obviously, employers were not anxious to post this type of notice. 

The Board intended to enforce the posting rule by:  (1) Deeming the failure to post an unfair labor practice; (2) considering the failure to post evidence of anti-union animus; and (3) tolling the statute of limitations on an ULP charge by six months. 

The United States District Court for the District of Columbia struck down some parts of the enforcement provisions, but concluded that the Board had the authority to enact the rule.  (In another case, a district court in South Carolina vacated the rule in its entirety last year.) 

The Court of Appeal focused on employers’ free speech rights.  It held that employers have the right to speak about an issue or not to speak about an issue at all.  Enforcing the rule would violate free speech rights.  Accordingly, the enforcement provisions of the rule were struck down.  Since the rule’s enforcement procedures were struck down, and there was no way to enforce the rule, the court concluded that the rule was invalid as well.  In a concurring opinion, one of the justices concluded that the Board lacked statutory authority to even enact the rule. 

The courts have not been kind to the Board lately.  I reported in an earlier blog about the Noel Canning case.  That was the court decision that concluded President Obama’s recess appointments to the Board were unconstitutional.  Click here if you want to read the government’s Petition for Certiorari. 
For some reason, I just don't feel sorry for the NLRB. 

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