D.C. Circuit Overturns NLRB Posting Requirement
In January, 2013 the D.C. Circuit Court of Appeals ruled that President Obama’s recess appointments of three members of the National Labor Relations Board were unconstitutional. Noel Canning Div. of Noel Corp. v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). On May 7, 2013, the D.C. Circuit delivered another rebuke to the Board, holding that the Rule it promulgated requiring employers to post a Board-approved notice of employee rights under the National Labor Relations Act (the “Act”) not only exceeded its authority under the Act, but was in fact inconsistent with the law.
The Board’s posting Rule required that “[a]ll employers subject to [the Act] 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 ….” 29 C.F.R. §104.202(a). Employers were required to use the form of notice approved by the Board, and were forbidden by the Rule from editing or otherwise altering it. Under the Rule, the failure of an employer to post the notice would deemed to be an unfair labor practice, and would also toll the six month statute of limitations that the Act provides under Section 10(b), 29 U.S.C. §160(b). The National Association of Manufacturers, among other groups, challenged the Rule as being beyond the power of the Board to promulgate. In National Association of Manufacturers v. NLRB, No. 12-5068 (D.C. Cir., May 7, 2013), the D.C. Circuit Court of Appeals agreed.
The Court staked its decision on the language of Section 8(c) of the Act: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice … if such expression contains no threat of reprisal or force or promise of benefit.” 29 U.S.C. §158(c). Drawing on well-established jurisprudence under the First Amendment, the Court concluded that the Board’s rule requiring employers to post the notice was the equivalent of compelling employers to engage in speech, in contravention of Supreme Court precedents that “‘have established the principle that freedom of speech prohibits the government from telling people what they must say.’” Slip op. at 17 (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61 (2006)).
The D.C. Circuit additionally held that the Board’s rule exceeded its authority because it created an new unfair labor practice – failure to post the notice – in derogation of the practices that Congress had legislated and defined as unfair. Slip op. at 22-23. The Court also determined that the Rule impermissibly attempted to extend the limitations period that Congress had enacted in the Act, observing that “the Board has not invoked any authority suggesting that the 1947 Congress [which enacted the six month limitations period] intended to allow §10(b) to be modified in the manner of the Board’s tolling rule.” Slip op. at 28.
The D.C. Circuit’s decision is a complete repudiation of the Labor Board’s spontaneous attempts to amend the Act through rule-making in order to create a legal environment more congenial to unions and unionization. The decision reminds us that it is Congress, not the Labor Board, which is ultimately responsible for the formulation of national labor policy.