Legal & Regulatory

Turmoil, Confusion Continues at the National Labor Relations Board

The U.S. District Court of Appeals for the D.C. Circuit recently struck down an NLRB rule adopted in 2011 that would have required employers to post a notice, written by NLRB lawyers, advising employees of their right to join a union. Failure to post the notice would constitute an “unfair labor practice” under NLRB rules. Enforcement of the rule had been on hold pending the legal reviews.

A three-judge panel appeals court ruled that the NLRB mandate was a violation of the free speech rights of the employer. Writing for the court, Judge A. Raymond Randolph said the constitutional protection against government coercion of speech extends to the “right of employers (and unions) not to speak.” Randolph continued, “This is why, for example, a company official giving a non-coercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union.

Predictably, reaction to the poster ruling split along political and economic lines. The New York Times Editorial Board labeled the decision “outrageous” and said it was a reminder of why the D.C. appeals court “is sometimes known as the graveyard of federal regulation….” Conservative columnist George Will, writing in The Washington Post, praised it, concluding that the NLRB poster rule was “the coerced speech of employers who are compelled to disseminate it on their premises.”

Will also pointed out the other aspect of Randolph’s opinion, which highlighted the question as to whether the NLRB has any legitimacy at all, at least for the moment. Randolph wrote, “Although the parties have not raised it, one issue needs to be resolved before we turn to the merits of the case.” That was a reference to the famous Noel Canning v. NLRB case, where the D.C. appeals court in January ruled that President Obama’s recess appointments to the board, giving it a quorum, were illegal, casting doubts on hundreds of NLRB rulings (although the poster rule was adopted before the appeals court ruling on the recess appointments).

The Wall Street Journal, commenting on the poster rule, said the decision “should be a prod for the Supreme Court to take up the Noel Canning case, which the Obama administration only bothered to appeal in mid-April.” Whether decisions made by the board during the period when most of its members were potentially holding illegal appointments will stand is up in the air until the Supreme Court rules. If the court fails to take the case, all board decisions since Obama made the questionable appointments would be nullified, according to The Washington Post.

Adding to pressure on the Supreme Court to review the recess appointment question, in mid-May, the U.S. Court of Appeals for the Third Circuit also ruled 2-1 that the Obama appointments were unconstitutional. The case is NLRB v. New Vista Nursing and Rehabilitation, following the same reasoning as in the Noel Canning case.

In the meantime, the administration has sent the Senate five nominees for the board, two of whom were among the president’s three 2012 recess appointees. The board has not had a full slate of five members since 2003, but needs only a quorum of three to do business. The Senate Committee on Health, Education, Labor, and Pensions approved the nominees on a straight party-line vote. They may not win approval from the full Senate.

Sen. Lamar Alexander (R-Tenn.), ranking Republican on the Senate labor committee, opposed the two Obama nominees who had held recess appointments whom the president nominated to confirmed terms. He said, “By recess-appointing NLRB members at a time when the Senate was actually in session, the president has shown a troubling disrespect for the Constitution, and the two members who continued to serve after the Appellate Court, which hears most NLRB cases, decided that they were unconstitutionally appointed, shows that same lack of respect.”

—Kennedy Maize is MANAGING POWER’s executive editor.

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