In a unanimous decision, the D.C. Court of Appeals rejected the National Labor Relations Board’s “notice posting rule” which would have required employers to conspicuously display the Board’s employee-rights poster informing employees of their rights under the National Labor Relations Act (“NLRA”), including the right to form, join or assist a union. National Association of Manufacturers v. NLRB, No. 12-5068. As a result, employers are not required to post the NLRB’s poster.
Before turning to the merits of the case, the Court examined whether the Board had the authority to promulgate the notice posting rule in light of the Court’s recent decision rendered in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). As we reported in January, the Court in Noel held that a recess appointment is constitutionally valid only if the appointment is made during an intersession recess of the Senate and to fill a vacancy that arose during that same intersession recess. After careful consideration, the Court held that the Board had a valid quorum under Noel as of the date the notice posting decision was filed. The Court reasoned that although the Board may have lost a quorum before the rule was published, this did not render the rule invalid.
The Court concluded that the Board’s three methods of enforcing the notice posting rule were invalid. The Court stated that because the rule makes an employer’s failure to post the notice an unfair labor practice and the Board would treat such a failure as evidence of an unfair labor practice, the Board’s rule violates Section 8(c) of the NLRA, which generally provides that expressing views or opinions cannot be evidence of an unfair labor practice. Relying heavily on Supreme Court authority, the Court reasoned that, “like the freedom of speech guaranteed in the First Amendment, Section 8(c) of the NLRA protects the right of employers (and unions) not to speak.” In addition, the Court ruled that the Board’s third method of enforcing the notice posting rule, by allowing the Board to toll the six-month statute of limitations to file an unfair labor charge, violated Section 10(b) of the NLRA.
In 2012, a Federal Court in South Carolina also rejected the Board’s notice posting rule. The appeal of that decision is currently pending before the Fourth Circuit Court of Appeals.
Obermayer labor and employment law attorneys are available to provide guidance and assistance on these issues.
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