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.