President Obama is introduced by AFLCIO President Richard Trumka at a 2010… (Charles Dharapak, AP )
WASHINGTON — Employers cannot be required to post a notice that tells their workers they have a right to join a union and bargain for better wages, a federal appeals court ruled in the latest setback for the National Labor Relations Board.
The so-called poster rule would have required more than 6 million private employers to post a one-page notice in a prominent place. Labor leaders hoped it would help stem the long decline in union membership in the private sector. Only about 7% of private-sector employees belong to unions.
But in a 3-0 decision Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit ruled the NLRB had overstepped its authority by requiring this "notification of employee rights."
This year, the same conservative-leaning court ruled that President Obama's recess appointments to the labor board were illegal.
The Senate's Republican minority had blocked confirmation of Obama's nominees, and the president tried to fill the seats by making temporary appointments when the Senate was on a brief recess. Obama's lawyers have now asked the Supreme Court to decide on the president's power to make recess appointments.
The National Assn. of Manufacturers, which led the legal challenge to the poster rule, called Tuesday's decision "an important victory in the fight against an activist NLRB and its aggressive agenda."
Most workplaces include a variety of notices telling employees of their rights under the law, but business lawyers said Congress did not give the NLRB a similar authority. They said the labor board is supposed to act as a referee or judge in disputes between management and labor, not as an advocate for more union organizing.
"This went way beyond the board's authority and beyond anything they had done for 75 years. There was a grass-roots sense of outrage from employers all across the country," said Maury Baskin, a Washington lawyer who represented the business coalition.
Last year, U.S. District Judge Amy Berman Jackson, an Obama appointee, upheld the rule and said it simply informed employees of their rights under the labor laws.
But the appeals court panel — three Republican appointees — described the rule as akin to government "compelled speech," which the Supreme Court has frowned upon.
"Like the freedom of speech guaranteed in the 1st Amendment, [federal labor law] necessarily protects the right of employers and unions not to speak," Judge A. Raymond Randolph wrote for the court.
The court did not declare the poster rule unconstitutional, but Randolph said the NLRB exceeded its authority when it decided an employer's failure to post the required notice was an unfair labor practice. Judges Janice Rogers Brown and Karen Henderson joined his opinion.
AFL-CIO President Richard Trumka slammed the decision's "twisted logic" as well as the judges who handed it down.
"The Republican judges of the D.C. Circuit continue to wreak havoc on workers' rights," he said, "this time by striking down a common-sense rule requiring employers to inform workers of their rights under federal labor law."
He said today's workplace requires employers to display posters explaining wage and hour rights, health and safety rules and anti-discrimination laws.
"When workers know their rights, the laws work as intended," he said.
The NLRB, which no longer has a required quorum of three members, issued a statement saying it was reviewing the decision.
Obama has been unable so far to appoint a judge to the 11-member appeals court in Washington. One of his nominees, New York attorney Caitlin Halligan, withdrew in March after the Republican minority in the Senate blocked her confirmation.