Wednesday, May 22, 2013

An Important Loss for the NLRB in the D..C. Circuit

From my partner, Jim Hendricks:

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia  rejected an NLRB rule published on August 30, 2011 which provided that  “. . . all employers subject to the NLRA (nearly 6 million employers) must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . .”  This ruling effectively kills the notice posting requirement unless the NLRB appeals the ruling to the Supreme Court.
The poster was to have been 11″ x 17″ and informed employees of their right to form, join, or assist a union, to bargain collectively through representatives of their choosing; to discuss wages, benefits, and other terms and conditions of employment with fellow employees or a union; to take actions to improve working conditions; to strike and picket; or to choose not to engage in any of these activities.  The poster also referred to items that were “illegal” for an employer to prohibit at work.  Conspicuously absent from the notice posting requirement was any statement that employees could decertify unions or not pay union dues in right to work states.
As an enforcement mechanism, the rule declared that an employer’s failure to post the notice was an “unfair labor practice.”  In addition, the rule allowed the Board to suspend the running of a six-month limitations period for filing any unfair labor practice charge under §10(b).  Further, the Board said the employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue.”
The Board attempted to justify its rule, citing its statutory “rule making” authority.    However, the Court of Appeals found the rule unlawful without addressing the Agency’s rule-making authority. The Court found that the posting requirement ran afoul of employer’s “free speech” rights found in the NLRA.    Relying on prior Supreme Court precedent, the Court found that §8(c) of the Act “expressly precludes regulation of speech about unionization “so long as the communications do not contain a threat of reprisal or force or promise of benefit.”  The Court concluded, in referencing the First Amendment, that “[t]he language of §8(c) explicitly covers more than just the  ‘expressing’ of the speakers views.  It covers as well the “dissemination” of “any views, argument, or opinion, “as long as the written, printed, graphic, or visual” material disseminated is not coercive.”  (29 U.S.C. §158(c)).
The Court concluded that the Board’s rule violates §8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated findings or refusals to hire – in other words, because it treats such a failure as evidence of an unfair labor practice.
The ruling effectively brings an end to this particular rule-making effort, without Supreme Court intervention.  Because each and every decision of the NLRB is reviewable in the DC Circuit, the ruling pending in the Fourth Circuit is largely academic.  All employers can thank the National Association of Manufacturers and others for their efforts to bring the rule-making authority of the NLRB back to reality.  Employers vigorously attacked the NLRB poster rule as they have on the current Board’s attempt to establish “ambush elections,” which significantly shortens the time for representation elections monitored and conducted by the NLRB.
This decision by the D.C. Court of Appeals follows its January 25, 2013 (Noel Canning v. NLRB, (D.C. Ct. 2013) decision holding that two current Board members were unlawfully appointed by President Obama as “recess” appointments, rendering all decisions by this Board void.  That decision is currently pending appeal to the US Supreme Court.

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