Notice & Comment

D.C. Circuit Invalidates NLRB Posting Rule, by Lynn White

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.”

The National Association of Manufacturers applauded the decision.  The AFL-CIO issued a statement condemning the decision, noting that it would call into question a number of federal posting requirements.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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