Labor Law -- 2013

National Association of Manufacturers v. NLRB   (D.C. Circuit)

Challenging NLRB's requirement to post provisions of NLRA

The NAM has won a major victory for manufacturers that we have been fighting for since 2011. This win came from the U.S. Court of Appeals for the D.C. Circuit, where we appealed a federal court ruling that upheld the NLRB's regulation that required employers to post in their workplaces a notice of the right of employees to organize into unions, bargain collectively, discuss wages, benefits and working conditions, jointly complain, strike and picket, or choose not to do any of these activities. For details on the district court proceedings, click here.

On 5/22/2012, the NAM filed a brief arguing 3 main issues. First, we challenged the fundamental authority of the Board to issue a posting rule at all. Congress never authorized notice-posting requirements, and rejected an express notice-posting amendment in the National Labor Relations Act (NLRA) while accepting notice-posting requirements in other labor laws.

Second, we again raised the argument that a mandate that private parties post government notices, without a clear statutory basis or compelling governmental interest, violates the First Amendment rights of employers as well as the balance of requirements spelled out in the NLRA.

Third, if the penalties for failing to post the required notice were themselves unlawful, the judge should have thrown out the entire regulation, because the NLRB did not intend for the posting requirement to stand on its own without enforcement teeth. The posting requirement was not severable from the enforcement provisions, and the entire regulation should fall.

We later filed a reply brief arguing that the NLRB failed to establish any statutory authority for the posting requirement. The Board had no authority to impose affirmative duties on employers who are charged with violations of the NLRA. The rule also violated the statutory provision which prohibits the Board from regulating expression that “contains no threat of reprisal or force or promise of benefit,” and violated employers’ First Amendment rights by forcing employers to communicate an unwanted editorial judgment to their employees.

On May 7, 2013, the D.C. Circuit agreed and overturned the NLRB regulation. It found that the rule's requirement that employers post a Government message requires an act of speech, and Section 8(c) of the Labor Management Relations Act declares that speech "shall not constitute or be evidence of an unfair labor practice under the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit." Thus the rule itself violates Section 8(c) because it makes an employer's failure to post the Board's notice an unfair labor practice.

It also ruled that the Board could not consider noncompliance with the rule to be evidence of antiunion animus, since that is also an unfair labor practice based on protected speech. Finally, the court ruled that the Board did not have the authority to amend the statute of limitations for filing unfair labor practice charges. Unless Congress intended the statute of limitations to include exceptions, the NLRB cannot create them years after the law was enacted.

Because all three means of enforcing the Board's posting requirement were invalid, the court ruled that the posting requirement itself was invalid, because the NLRB would never have promulgated it in the first place without ways to enforce it. The Board did not want just voluntary compliance.

A concurring opinion from 2 of the 3 judges found that the Board did not have authority under Section 6 of the NLRA to issue the rule because the posting requirement was not necessary to carry out the Board's responsibilities. It may only issue regulations that are necessary to carry out its responsibilities. The law does not impose an obligation on employers to educate its employees on labor relations law. In addition, the NLRB was set up to handle complaints that are filed by others, not promulgate rules that are "so aggressively prophylactic as the posting rule."

On 7/22/13, the NLRB asked the full complement of judges on the D.C. Circuit to rehear this case. The NAM filed a brief in opposition, arguing that the Board failed to identify any conflict between the court's ruling and any other court decision that would warrant further review. We also noted that a majority of the panel that decided the case also ruled that the Board exceeded its statutory authority on other grounds which independently preclude enforcement of the poster rule. On Sept. 4, the court declined to rehear the case. The NLRB had 90 days to appeal to the Supreme Court, but it declined to do so. The D.C. Circuit's ruling is now final.

Related Documents:
NAM Opposition to Appeal  (August 20, 2013)
NAM reply brief  (July 11, 2012)
NAM opening brief  (May 22, 2012)
D.C. Circuit's Injunction  (April 17, 2012)