On
May 7, 2013, the U.S. Court of Appeals for the District of Columbia invalidated a National Labor
Relations Board (NLRB) posting rule notifying employees of their rights under
the National Labor Relations Act (the Act). Noncompliance with the requirement could have been considered an unfair labor practice. The National Association of Manufacturers and
other trade associations challenged the rule in district court asserting that
the rule violated the Act and the First Amendment of the Constitution. The district court ruled that while the NLRB
had the authority to issue the rule, some of its provisions were invalid.
On
appeal, the Circuit Court first determined that its recent decision invalidating President Obama’s
recess appointments to the NLRB had no impact on the validity of the final rule
in question. The court then focused its
analysis on whether the final rule violates Section 8(c) of the Act, which
states that speech shall not constitute an unfair labor practice unless it
includes coercion. The court held that
the rule violated Section 8(c) since freedom of speech includes the right not
to disseminate information (i.e. the NLRB poster) and failure to post would be
considered an unfair labor practice. The
court declined to address whether the NLRB had the authority to issue the rule
as the plaintiff’s asserted.
In
a concurring opinion, Judges Karen LeCraft Henderson and Janice Rogers Brown
stated that the NLRB had no authority to issue the rule since it failed to
establish why the poster was necessary to carry out the Act. The NLRB’s assertion that the rule was
necessary to educate uninformed employees of their rights was
unpersuasive. Judge Henderson further
noted that Congress intended for enforcement of the Act to be remedial, and not
“prophylactic.”
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