• D.C. Circuit Vacates Controversial “Mandatory Posting” Rule
  • May 9, 2013 | Author: Mark A. Carter
  • Law Firm: Dinsmore & Shohl LLP - Charleston Office
  • On May 7, 2013 the D.C. Circuit Court of Appeals vacated the controversial “mandatory posting” rule implemented by the National Labor Relations Board on August 30, 2011. National Association of Manufacturers, et al. v. NLRB, No. 12-5068 (D.C. Cir. 2013). The rule, titled the “Notification of Employee Rights under the National Labor Relations Act” would require every employer under the jurisdiction of the NLRB to post a notice informing employees of their rights to organize a union without retaliation. The rule also created an unfair labor practice to permit the NLRB to punish employers who failed to post the notice, created a presumption that those employers were possessed of an anti-union animus, and created a new statute of limitations permitting the NLRB to bring action against those employers more than six months after they committed the violation as an exception to the National Labor Relations Act’s standard limitations period contained in Section 10(b) of the statute.

    The D.C. Circuit found that the rule was inconsistent with the National Labor Relations Act and therefore vacated it. The court concluded that by requiring employers to post the notice under threat of an unfair labor practice proceeding, the Board’s rule violated Section 8(c) of the statute. The court found that the National Labor Relations Act (“Act”) guaranteed employers and unions the “right not to speak” and that by compelling employers to post the notice that right was infringed upon.

    The court also found that the rule’s creation of a new statute of limitations, within which the Agency could prosecute employers who failed to post the notice, was contrary to Section 10(b) of the Act describing the Agency’s rationale for the rule as “bad wine of a recent vintage.”

    Finally, observing that the NLRB “would not have issued a posting rule that depended solely on voluntary compliance,” and given that the enforcement mechanisms of the rule had been vacated, the court held the posting rule was vacated in its entirety.

    In a concurring opinion, two judges who sat on the three judge panel wrote that they were persuaded that the NLRB lacked authority to issue the posting rule even had its terms complied with the Act.

    The court’s majority opinion does find that former recess appointee Craig Becker, who was a Member of the NLRB when the “mandatory posting” rule was issued and implemented, was appointed to the NLRB on March 27, 2010 during an intrasession recess of the Senate and that, as such, his appointment was “constitutionally invalid” citing the court’s decision in Noel Canning v. NLRB, 705 F. 3d 490 (D.C. Cir. 2013).

    Pragmatically, the impact of the decision is that employers subject to the jurisdiction of the National Labor Relations Board will not have an obligation to post the notices issued by the NLRB notifying employees of their rights under the Act. The “mandatory postings” rule is also being considered by the Fourth Circuit Court of Appeals and that court could issue a contrary ruling. However, all enforcement proceedings of the NLRB are subject to review in the D.C. Circuit Court of Appeals, and as such, any employer who was found responsible for the violation of the mandatory postings rule would have the right to seek review in that court. As the D.C. Circuit has concluded that the rule is vacated, the NLRB would have virtually no chance of enforcing any determination that an employer had violated the rule.

    It is also possible that the NLRB will seek an en banc review of the D.C. Circuit or appeal the decision to the United States Supreme Court. Both the en banc review (if accepted) and the Supreme Court, if it chose to hear the appeal, would have an opportunity to review the decision and modify it or overrule it.