On June 14, 2013, the Fourth Circuit Court struck down the National Labor Relations Board’s rule that would have required six million private employers to hang posters about workers’ right to unionize or to face penalties for anti-union bias for refusing. The court noted that even the National Mobilization Against Sweatshops, a worker-advocacy group, admitted that very few workers learn about their rights through postings. The NLRB has rarely engaged in rulemaking in its seventy-seven years of existence, but the Fourth Circuit’s ruling makes clear that when it does, it may be acting outside of its legal authority. The Court explained that the part of the National Labor Relations Act that gives the Board power to issue rules, Section 6, does not allow the issuance of this type of rule because the NLRB is supposed to be a reactive agency. Accordingly, the court found that the posting rule is outside of the bounds of the law.
The rule was also challenged in the D.C. Circuit in May, where the Court vacated the rule as unenforceable on the same grounds. The D.C. Circuit also recently struck down another NLRB rule that was passed shortly after the postings rule which was related to union elections.
Some of the NLRB’s rulings from the past couple of years may also be compromised on different grounds. In the course of finding President Obama’s NLRB recess appointments unconstitutional, the D.C. Circuit and the Third Circuit Court of Appeals have both engaged in a detailed analysis of the meaning of “recess”. As a result of this review, the D.C. Circuit nullified some of the NLRB rulings, determining that they were made during a time that the NLRB lacked quorum to make valid Board decisions. The United States Supreme Court will hear the case from the D.C. Circuit in October 2013, and as a result of its findings, more than 900 NLRB decisions may be deemed invalid.
The NLRB was formed in 1933 as a reaction to union strikes, but the recent rules about unions seemingly go past the authority granted at that time. With the string of recent court rulings unfavorable to the NLRB, as well as the amount of resources the Board has had to expend on defending its rulings, the Board may be discouraged from acting proactively anytime soon. This means that employers, employees, and unions who seek legal relief should plan on bringing a claim to the NLRB instead of relying on the NLRB to handle any widespread employment issue with a broad rule.
Any employer, employee, or union who needs assistance with NLRB rules or rulings should consult with experienced employment or labor counsel.