NLRB can't implement new posting rule

WASHINGTON (Legal Newsline) - The United States Court of Appeals for the District of Columbia Circuit issued an injunction April 17 preventing the National Labor Relations Board from implementing its controversial posting rule on April 30, as scheduled.

The rule would require employers to post some employees' rights pursuant to the National Labor Relations Act. But critics say it mandates some rights be posted regarding unionization but omits others. Employers, workers advocacy groups and members of Congress objected to this.

Two organizations filed lawsuits in federal court. One was the National Association of Manufacturers and the other was the National Right to Work Legal Defense Foundation - a workers' rights advocacy group. Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia invalidated some of the attendant issues of the NLRB rule but it did affirm the its ability to mandate such a notice of employee rights and to request employers to post such notice.

The D.C. Circuit said the implementation and enforcement of the rule will await the court's decision for the appeal filed by the National Association of Manufacturers and the National Right to Work Legal Defense Foundation.

NLRB Chairman Mark Gaston Pearce said of the recent decisions, "We continue to believe that requiring employers to post this notice is well within the Board's authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."

John N. Raudabaugh -- the Reed Larson Professor of Labor Law at Ave Maria School of Law in Naples, Fla. -- is co-counsel representing the National Right to Work Legal Defense Foundation, which filed a lawsuit against the implementation of the NLRB rule. Raudabaugh served as a member of the NLRB during the first Bush administration.

"This seems to me to be quite appropriate," he said. "We previously had a ruling by the federal District Court for the District of Columbia validating the creation and enforcement of the rule. But the federal District Court of the District of South Carolina court found the rule unconstitutional."

Professor Raudabaugh added, "We have two different federal courts reaching different outcomes. Therefore the matter has been appealed to the federal court of appeals which issued the injunction pending the courts review of the appeals. We expect to have briefs submitted and oral arguments in late September and a ruling by the end of the year."

He noted that the NRWF is concerned that the NLRB was not given congressional approval to do this. The statute does not articulate that a failure to post the NLRB is an unfair labor practice.

But the NLRB wants to make it so. The posting rule that is being promulgated is also not a fair and accurate representation of the statutes own language according to Raudabaugh. It does not require the post include the employees' rights not to engage in unionization.