*By Jonathan J. Downes
On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) delivered another blow to the National Labor Relations Board (“NLRB”). This time, the D.C. Circuit issued an opinion vacating the NLRB’s notice-posting rule issued in August 2011, in National Association of Manufacturers v. National Labor Relations Board, No. 12-5068 (D.C. Cir. May 7, 2013). In January, in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), the D.C. Circuit ruled that President Obama’s “recess appointments” to the NLRB were unconstitutional, calling all NLRB decisions since at least January 2012 into question.
As Zashin & Rich, Co., L.P.A. explained in an April 2012 alert, the NLRB issued a rule in August 2011, requiring all employees subject to the National Labor Relations Act (“NLRA”) to post a notice in the workplace and, where applicable, on-line, informing employees of their rights under the NLRA (the “posting rule”). The union-friendly posting informed employees that, among other things, employees had the right to form, join, or assist a union, to file unfair labor practices (“ULP”), and strike or picket. The posting rule also provided that an employer’s failure to post the required notice was an unfair labor practice (“ULP”), would serve as evidence of unlawful motive in other ULP charges, and could extend the period of time for employees and unions to file ULPs.
Employer groups filed two suits challenging the posting rule – in the U.S. District Court in the District of Columbia and U.S District Court in South Carolina. On March 2, 2012, the D.C. District court held that the NLRB possessed the authority to issue the posting rule but that its enforcement mechanisms were unenforceable. However, the D.C. District Court also held that the NLRB could consider an employer’s “knowing and willful” failure to post these notices as evidence of an unlawful motive in other ULP investigations. The employer groups appealed to the D.C. Circuit. After the D.C. District Court decision, the U.S. District Court in South Carolina held, in Chamber of Commerce of the United States v. NLRB, that the NLRB did not have the authority to issue the notice-posting rule. Following the South Carolina decision, the D.C. Circuit granted an injunction staying implementation of the posting rule.
In its decision issued this week, the D.C. Circuit struck down the posting rule on grounds that it violated the principles of the First Amendment expressed through Section 8(c) of the NLRA. Section 8(c) provides that the “expressing of any views…shall not constitute or be evidence of an unfair labor practice” so long as the expression contains “no threat of reprisal or force or promise or benefit.” The D.C. Circuit explained that 8(c) “merely implements the First Amendment, in that it responded to particular constitutional rulings of the NLRB,” and explained that, “[A]lthough 8(c) precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the [posting rule] does both.”
Specifically, the D.C. Circuit held that “[T]he right to disseminate another’s speech necessarily includes the right to decide not to disseminate it. First Amendment law acknowledges this apparent truth: ‘all speech inherently involves choices of what to say and what to leave unsaid.’” In this instance, the Court’s analysis led it to conclude that the NLRB could not force employers to tell employees that they had the right to organize a union and under penalty of violating the NLRA.
The D.C. Circuit stopped the NLRB’s posting rule – for now. However, employers can assume that the NLRB will appeal the posting rule decision to the U.S. Supreme Court – as it did with the recess appointment ruling. Although the NLRB has extended its impressive streak of losses in the D.C. Circuit, and other federal courts, the legal battle is not over. Z&R will keep you updated on any legal developments involving these and other legal matters involving the Board as they occur.
*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Jonathan (jjd@zrlaw.com) at 216.696.4441.
