It has been almost a year since there was news to report about the NLRB proposed rule requiring employers to post notices about union organizing rights. As you might recall, the NLRB issued the rule in the fall of 2011 and it caused immediate controversy. Many in the business community considered the posting an unwarranted effort by the NLRB to support union organizing. Many considered the rule to go well beyond the NLRB's authority under the National Labor Relations Act. Lawsuits were filed in two federal district courts challenging the NLRB's authority to issue and enforce the rule. The lower court decisions in those cases were in conflict. A district court in South Carolina ruled that the NLRB had exceeded its authority and could not enforce the rule. The district court for the District of Columbia upheld the NLRB's right to issue and enforce the rule in general, but overruled two specific aspects of the rule. Both of these lower court decisions were appealed to the federal Courts of Appeal; the Fourth Circuit Court of Appeal which covers South Carolina and the D.C. Circuit Court of Appeal. As a result of the litigation, in April of 2012, the NLRB issued an indefinite stay on the enforcement of the rule. Since then, we have been waiting to see how the issue would be decided by the Courts of Appeal.
On Tuesday, the D.C. Circuit Court of Appeal issued its decision in National Ass'n of Manufacturers, et al. v. National Labor Relations Board, et al. (U.S. Court of Appeals for the District Court of Columbia Circuit, Case No. 12-5068). The Court found that the NLRB cannot enforce the posting rule. The majority decision invalidates the rule because it essentially forces an employer to communicate to its workforce about unionization. The majority found that doing so violates the employers' right under the National Labor Relations Act to speak or be silent about union organizing issues. Because the rule was invalidated on those grounds, the majority decision does not address the question of whether the NLRB can even issue a rule requiring employers to take some affirmative step, like a posting. One of the arguments in the case was that the NLRB's specific role under the law is conducting union organizing elections and investigating alleged unfair labor practices, and that they have no authority to make employers do anything outside that limited role.
So, where do things stand now? The NLRB had already imposed an indefinite stay on enforcing the rule, so clearly the rule is currently dead. The decision by the D.C. Circuit Court of Appeals may make it less likely the rule will ever re-surface. But do not be too sure of that.
The NLRB will probably continue to fight the case pending in the Fourth Circuit Court of Appeals to see if it can obtain a different result there. The NLRB can also appeal the issue to the United States Supreme Court. Certainly, we will report on any further developments.