Probusiness groups are cheering a new ruling from the U.S. Court of Appeals for the District of Columbia Circuit that represents another blow to the National Labor Relations Board (NLRB). The appeals court, which issued another ruling against the NLRB in January, ruled on May 7 that the Board exceeded its authority in its effort to require employers to post a notice of employee rights under the National Labor Relations Act.
The NLRB issued the rule in 2011, but it was never implemented because of court challenges. Had it gone into effect, all employers under NLRB jurisdiction—including nonunion employers—would have been required to post an 11-by-17-inch poster explaining that employees have the right to act together to improve wages and working conditions; to form, join, and assist a union; to bargain collectively with their employer; and to refrain from any of those activities.
“Today, manufacturers claim an important victory in the fight against an activist NLRB and its aggressive agenda,” Jay Timmons, president and CEO of the National Association of Manufacturers, said after the appeals court ruling. “The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”
Timmons also stressed that his group is not relaxing because of the court victory. “The ruling is a significant moment for manufacturers, but we will not assume the threat of an activist NLRB is eliminated,” he said. “Instead, we will remain consistently vigilant to ensure that manufacturers are protected from any future oversteps by this rogue agency.”
The National Federation of Independent Business (NFIB) also praised the appeals court ruling. “Today’s decision is a monumental victory for small-business owners across this country who have been subject to the illegal actions of a labor board that has consistently failed to act as a neutral arbiter, as the law contemplates,” Karen Harned, executive director of NFIB’s Small Business Legal Center, said following the ruling.
“The court acknowledged that the choice to speak includes ‘the choice of what not to say,’ and that the NLRB overstepped its authority by compelling small-business owners to post a pro-union notice,” Harned said.
Union leaders were quick to voice their disapproval of the court’s ruling. AFL-CIO President Richard Trumka said the D.C. Circuit “has once again undermined workers’ rights—this time by striking down a common-sense rule requiring employers to inform workers of their rights under federal labor law.”
Trumka said the ruling is inconsistent with laws requiring employers to display posters explaining wage and hour rights, health and safety and discrimination laws, and even emergency escape routes. “The court’s twisted logic finds that ‘freedom of speech’ precludes the government from requiring employers to provide certain information to employees,” he said. “This is absurd: When workers know their rights, the laws work as intended.”
The D.C. Circuit is the same court that jeopardized the NLRB’s status in a January 25 ruling that invalidated three recess appointments made by President Barack Obama in January 2012. Since the appointments were ruled invalid, all the Board’s actions since the recess appointees joined the agency have been thrown into question.