NLRB Poster Rule Struck Down, Again

The National Labor Relations Board (NLRB) just can’t win for losing these days. First, the Supreme Court decided that a two-member “rump” (of the usual five-member Board) was not authorized to conduct NLRB business. This threw about 600 decisions into doubt, as they were issued after the terms of the other three members had expired. Next, federal courts held up the NLRB’s efforts to make rules that would require employers to post a notice of union rights and would speed up union elections. Then, the D.C. Circuit Court of Appeals decided that President Obama’s effort to solve that two-member problem by making three recess appointments to the Board had failed, and that the Board still lacked the necessary quorum (at least three members) required to do any business.

The Obama administration recently appealed that last decision to the Supreme Court, but the D.C. Circuit wasn’t finished yet: Yesterday, that Court struck down the NLRB’s posting requirement as a violation of employer free speech rights. This requirement had been on hold while the Court heard arguments and made its decision, so the opinion hasn’t changed the status quo. It will take a Supreme Court opinion (in favor of the NLRB, quite unlikely) to get these posters up in the workplace.

The Court of Appeals opinion focused mainly on the Board’s methods of enforcing the posting requirement. The Court found that the Board didn’t have the authority to penalize the employer for failing or refusing to put up the poster (by, for example, making failure to post an unfair labor practice, creating a legal presumption that failure to post showed an anti-union bias, or extending the statute of limitations for employees to file a charge with the NLRB if their workplace had no poster informing them of their rights). The basis for this holding was employer free speech. The NLRB is not allowed to penalize employers for saying what they wish about unions, as long as no coercion or threats are involved. By the same token, the Court reasoned, the NLRB can’t force employers to “speak” by punishing them for failing to hang the poster.

It’s interesting to me how much firepower has been levied against the NLRB lately, especially about something so basic as a workplace rights poster. Employers are already required to hang posters about health and safety, discrimination laws, the minimum wage, and more, so I would have thought this type of requirement wouldn’t raise much employer ire. Because they are such a routine feature of the workplace landscape, most employees ignore them, in my experience. So why all the uproar about adding one more poster to the bulletin board?

Based on all of the recent activity against the NLRB, as well as the fights in the past couple of years over public employee unions, right to work laws, collective bargaining rights, and so on, it seems clear that the opposition to the NLRB is about more than posters. These lawsuits haven’t been brought by individual employers, but by large employer advocacy groups, such as the National Association of Manufacturers and the Chamber of Commerce. This agency — and the rights it enforces — are under sustained attack by business groups. The Board has been prevented from issuing regulations, issuing opinions, or stepping in to resolve disputes over elections. The recess appointments and two-member rump strategy were efforts to continue doing business despite Congress’s continued failure to confirm new Board members. President Obama has responded by nominating a bipartisan package of five members (the Board is bipartisan by design), but Congress still hasn’t taken action. With insufficient members and such fierce opposition, it’s unclear at this point what the Board can do to get back on its feet.