Appeals Court Strikes Down Rule on Union Posters in the Workplace

The NLRB has had a ruling overturned by a federal appeals court — again.

The Los Angeles Times reports that“Employers cannot be required to post a notice that tells their workers they have a right to join a union and bargain for better wages, a federal appeals court ruled in the latest setback for the National Labor Relations Board.”

According to the newspaper:

The (NLRB’s) so-called poster rule would have required more than 6 million private employers to post a one-page notice in a prominent place. Labor leaders hoped it would help stem the long decline in union membership in the private sector. Only about 7 percent of private-sector employees belong to unions.

But in a 3-0 decision Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled the NLRB had overstepped its authority by requiring this “notification of employee rights.”

This year, the same conservative-leaning court ruled that President Obama’s recess appointments to the labor board were illegal.”

Business community: decision “an important victory”

The New York Times notes that, “Ever since the labor board proposed the rule in December 2010, business groups have asserted that the move exceeded the board’s authority and was an improper imposition on nearly 6 million employers, most of them small businesses. … Many businesses (had) asserted that the labor board’s proposed poster was one-sided and pro-union, although the board said the poster was neutral.”

Reaction to the ruling was predictable, with business groups praising the court decision while organized labor blasted it.

Here’s what the business community said, according to the LA Times:

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The National Assn. of Manufacturers, which led the legal challenge to the poster rule, called Tuesday’s decision “an important victory in the fight against an activist NLRB and its aggressive agenda.”

Most workplaces include a variety of notices telling employees of their rights under the law, but business lawyers said Congress did not give the NLRB a similar authority. They said the labor board is supposed to act as a referee or judge in disputes between management and labor, not as an advocate for more union organizing.

“This went way beyond the board’s authority and beyond anything they had done for 75 years. There was a grass-roots sense of outrage from employers all across the country,” said Maury Baskin, a Washington lawyer who represented the business coalition.”

Labor: decision will “wreck havoc in workers’ rights”

And, here’s what labor had to say about the ruling, according to The New York Times:

The A.F.L.-C.I.O. attacked the ruling. “The Republican judges of the D.C. Circuit continue to wreak havoc on workers’ rights,” its president, Richard L. Trumka, said. The labor federation, like the Obama administration, was already upset with the circuit court for ruling in January that President Obama’s recess appointments to the labor board were illegal and that the board thus did not have a quorum needed to operate. The Obama administration has appealed that decision to the Supreme Court.

Trumka questioned the sweep of Tuesday’s ruling, saying: “In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The circuit court’s ruling suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages and many other areas.”

The key issue for the appeals court was the notion that the NLRB’s labor poster requirement was, as the LA Times put it,  “akin to government ‘compelled speech,’ which the Supreme Court has frowned upon. ” ‘Like the freedom of speech guaranteed in the 1st Amendment, [federal labor law] necessarily protects the right of employers and unions not to speak,’ Judge A. Raymond Randolph wrote for the court.”

In a statement, the NLRB  said it was reviewing the latest poster ruling and would “make a decision on further proceedings at the appropriate time.” The Board also noted that the Fourth U.S. Circuit Court of Appeals in Richmond, VA. was also reviewing the legality of the poster rule, and that could have an impact on their decision as well.

John Hollon is Editor-at-Large at ERE Media and was the founding Editor of TLNT.com. A longtime newspaper, magazine, and business journal editor, John has deep roots in the talent management space. He's the former Editor of Workforce Management magazine and workforce.com, served as Editor of RecruitingDaily, and was Vice President for Content at HR technology firm Checkster. An award-winning journalist, John has written extensively about HR, talent management, leadership, and smart business practices, including for the popular Fistful of Talent blog. Contact him at johnhollon@ere.net, connect with him on LinkedIn, or follow him on Twitter @johnhollon.

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