Federal Court Delivers Another Blow to Obama Labor Board Agenda

Employment Law

This week, the D.C. Circuit Court of Appeals struck down the National Labor Relations Board regulation requiring that employers post notices of labor rights, though the decision does not affect a similar posting requirement for federal contractors under an Obama executive order.  In NAM v. NLRB, the court ruled that, by finding that an employer committed an unfair labor practice by failing to post the notice, the requirement violated the employer's free speech rights under the National Labor Relations Act.  In the only other federal court challenge to the rule, a federal district court in South Carolina ruled that the Board lacked authority to issue the regulation.  Last year, the Board decided to suspend enforcement of the regulation pending the litigation.  Prior to the Board's promulgation of the regulation, federal contractors were already required to post a largely identical poster under President Obama's Executive Order 13496.  Meanwhile, the decision against the poster rule raised the visibility of the Board's current crippled status, including a Wall Street Journal editorial stating: "Tuesday's smackdown [i.e., the NAM decision] should be a prod for the Supreme Court to take up the Noel Canning case, which the Obama Administration only bothered to appeal in mid-April.  The White House's defiance of the courts is creating mass confusion in business-labor relations, which is not helped by poorly crafted and politicized regulations like the poster rule."