This morning, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit, in National Association of Manufacturers v. National Labor Relations Board, struck down a new NLRB regulation requiring employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites. Judge Randoph wrote the opinion for the court finding that the various means of enforcing the rule violated various provisions of the NLRA. Among other things, Judge Randolph concluded that if Section 8(c) of the NLRA prohibits the Board from finding an employer guilty of an unfair labor practice for posting a notice informing workers of their right not to join a union, it cannot be an unfair labor practice for an employer to refuse to post a notice informing workers of their right to unionize. Judge Henderson also wrote a concurring opinion, joined by Judge Brown, articulating additional reasons to find the rule invalid.
Of note, the court did not rely upon its previous decision invalidating President Obama’s recess appointments to the Board. This was at issue because the publication date of the rule in the Federal Register occurred after the expiration of Wilma Leibman’s term, at which point the Board was left with only two Senate-confirmed members. This did not matter, Judge Randolph explained, because the Board actually promulgated the rule before Leibman’s term expired and thus before the NLRB lost its quorum. While the date of Federal Register publication matters for determining when petitioners must challenge agency rules — it is such publication that puts regulated parties on notice — once an agency has actually finalized and filed its rule with the Office of the Federal Register, the agency’s action is complete. Thus the Board had a quorum when it acted to promulgate the rule, even if other parts of the federal government had additional responsibilities to fulfill.
Another challenge to this rule is pending in the U.S. Court of Appeals for the Fourth Circuit.