In a well-publicized victory for employers, the United States Court of Appeals for the D.C. Circuit recently vacated the National Labor Relations Board (“NLRB”) final rule requiring employers to post notices of employees’ rights. As we reported in April 2012, the D.C. Circuit had previously enjoined the rule, which would have required that all private-sector employers subject to the National Labor Relations Act (“NLRA”) post a notice of employees’ rights, including the right to unionize. The most recent decision, in National Association of Manufacturers v. NLRB, held that the rule could not be reconciled with the requirements of the NLRA.
The D.C. Circuit also addressed whether the NLRB lacked the authority to promulgate the rule under the court’s decision Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), which invalidated a number of President Obama’s recess appointments to the NLRB and deprived the NLRB of a quorum. Ultimately, the D.C. Circuit stated that, to the extent Noel Canning applied, the NLRB had a valid quorum when the rule was filed. Thus, the Court held that the rule would have been valid under Noel Canning even though the NLRB lost its quorum before the rule was published.