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NLRB Posting Rule Invalidated by the DC Circuit Court of Appeals

5/15/2013 | Construction Blog

The D.C. Circuit Court of Appeals recently ruled in favor of a local business, Lehigh Valley Racket and Fitness Centers, and struck down a National Labor Relations Board rule requiring the posting of union organization posters at its workplace.  The decision comes on the heels of a prior ruling by the D.C. Circuit declaring President Obama’s “recess” appointments to the National Labor Relations Board unconstitutional and marks another setback for the NLRB.

Among the things challenged by the plaintiffs, including the National Federation of Independent Businesses, was the constitutionality of making it an unfair labor practice to refuse to display a poster notifying workers of their right to organize. In overruling the trial court’s decision favoring the NLRB, the Circuit Court relied heavily on a free speech analysis. Specifically, it found that the rule violated Section 8(c) of the National Labor Relations Act because the First Amendment included the right to refrain from speech mandated by the government. By making it an unfair labor practice to refuse to display the poster, the government was effectively mandating the communication of information that a business owner might otherwise elect not to convey. The owner of Lehigh Valley Racket and Fitness Centers strongly suggested that he participated in the lawsuit as a Plaintiff for that reason. He thought the rule overreached by forcing business owners into speech with which they strongly disagreed.

The NLRB has not yet announced whether it will appeal the decision. If prior cases dealing with such issues are any indication, they are likely to do so.