Appeals Court Strikes Down Controversial Poster Requirement

Lamar8915-IMG11By Sarah H. Lamar, HunterMaclean

Special to Business in Savannah

The U.S. Court of Appeals for the District of Columbia Circuit recently struck down a controversial federal rule that would have required most U.S. employers to display a written notice informing workers of their right to form a union and bargain collectively to improve wages and working conditions.

The appeals court determined that the federal National Labor Relations Board (NLRB) — a five-member board that works to enforce the rights of employees to organize and collectively bargain — violated employers’ free speech rights by forcing them to display the posters or face unfair labor practice charges under the National Labor Relations Act (NLRA).

The NLRB argued the 11-inch-by-14-inch poster was necessary because many workers were not aware of their right to engage in collective bargaining or their other rights under the NLRA.

Even though this controversial poster never actually went up in Savannah workplaces, the appeals court’s ruling underscores the recent obstacles faced by the NLRB in implementing its requirements. Many in the employer community have argued the board is trying to expand its reach beyond the scope of its authority.

In January, a landmark ruling in Noel Canning v. NLRB challenged the legality of appointments to the federal board in the U.S. Court of Appeals for the District of Columbia Circuit.

In this important case, the appellate court ruled that “recess” appointments made by President Obama in January 2012 were invalid because the president exceeded the scope of his authority under the Recess Appointments Clause to the U.S. Constitution.

In short, the court determined that recess appointments may be made only during the recess between each session of Congress, not during breaks within each session.

In addition, the Noel Canning court held that recess appointments can only fill positions that become vacant during the recess, which means recess appointments cannot be used to fill pre-existing vacancies.

According to the appellate court’s ruling, the NLRB has not had a full quorum of members since Jan. 4, 2012.

This ruling calls into question hundreds of other recent NLRB decisions by finding that President Obama’s appointments to the board were unconstitutional and that the board itself made decisions without the legally-mandated quorum.

If additional NLRB decisions affecting companies across the country continue to be struck down at the appeals level, this trend could have a major impact on many U.S. employers. Meanwhile, the NLRB has petitioned the U.S. Supreme Court for review of the Noel Canning decision.

It is more important than ever for local companies to stay on top of employment law changes, trends and updates, especially given the new regulations promulgated by the NLRB and the court decisions interpreting them.

To the extent the NLRB rules are not overturned by the courts, there can be significant penalties for employers’ failure to comply, including back pay and benefits and reinstatement of workers terminated in violation of the NLRA.

Employers are advised to seek counsel from an experienced employment law attorney to ensure compliance with the NLRB’s rules and regulations, particularly during this period of uncertainty.