Courts Bolster Business Rights With Delay On Pro-Union Posting Rule

Posted on April 25, 2012

BOSTON — In another blow against aggressive union influence, two courts recently undercut the authority of the National Labor Relations Board to require employers to post notices in workplaces informing workers of right to organize and start a union.

For chauffeured transportation operators, the decisions mean they, too, no longer have to post such notices alongside standard wage, hour and employment notices required by the Department of Labor.

The decisions follow another slow victory for employers during the years of the aggressively pro-union Obama Administration: The gradual collapse of efforts to push through Congress union-driven card check legislation that would have obliterated private voting during employee elections on whether to unionize.

According to a legal update provided by the Boston-based Robinson & Cole law firm, a major business litigation practice in the Northeast, the two court decisions have significantly affected the sweep of the National Labor Relations Act:  

“The U.S. District Court for the District of South Carolina decided on April 13, 2012, that the National Labor Relations Board (NLRB) had no authority to issue the notice posting rule. The court in Chamber of Commerce, et al. v. National Labor Relations Board, et al., held that the NLRA language is silent on the issue of notice posting, and the NLRA does not require or even permit the NLRB to issue such a rule. The court also found that, unlike other federal employment laws, the legislative history of the NLRA does not support a finding that Congress intended to impose a notice posting requirement. While this court clearly marked a split within the federal circuits, this decision is not considered binding for employers doing business in New England.

“More importantly, on April 17, 2012, in National Association of Manufacturers, et al., v National Labor Relations Board, et al., the D.C. Circuit Court of Appeals granted an emergency motion for injunction pending the appeal of a D.C. District Court decision previously upholding the notice, in part. The Court of Appeals considered the NLRB's previous action postponing the operation of the rule during the pendency of the earlier district court proceedings. The Court of Appeals also considered the NLRB's cross-appeal argument that contests the district court's invalidation of the primary enforcement mechanisms for violations of the posting requirement. The Court of Appeals held that "[t]he uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.”

“This D.C. Circuit Court of Appeals order issuing a temporary injunction prohibits enforcement of the NLRA rule on a nationwide basis, meaning employers are not required to post the notice by April 30, 2012. The NLRB has responded to the temporary injunction by directing all of its regional offices nationwide not to implement the rule pending resolution by the D.C. Circuit Court. A final ruling on the NLRA notice from the D.C. Circuit Court is expected to be issued in the fall of 2012. While the courts and the NLRB have halted the notice posting requirement at least temporarily, employers should continue to keep abreast of the rapidly changing NLRA developments.”

One major limousine company that was affected by the NLRA requirement, Boston-based Commonwealth Worldwide Chauffeured Transportation, had posted the union notices in employee work areas before Jan. 1 but then took the signs down after finding out the rule had been postponed the first time.

“Now that they have postponed [it] again, we may not have to be posted them at all,” Commonwealth CEO Dawson Rutter told LCT. “Basically, the [NLRB] is asking American businesses to advertise for the unions, that employees should start a union. The [unions] are angry because card check never went through. That was going to be a burden to employers to defend themselves against unionization.”

As a board director of the National Limousine Association who leads that group’s political and legislative action efforts, Rutter has become one of the foremost industry experts on how unions try to disrupt chauffeured transportation companies and what business owners and executives can do to combat unionization. Several big name chauffeured transportation companies in recent years have had to enlist legal help in warding off union efforts, with New York, California and Illinois being three of the most active pro-union states, he said.

Rutter warned that one NLRB board member appointed by President Obama, Craig Becker, had been trying in every way to boost union membership. His formal nomination was withdrawn after serving temporarily as a recess appointee. “Card check and the NLRB posting were two of the most egregious difficulties facing us with unions,” Rutter said.
Sources: Robinson & Cole LLP Attorneys At Law news update; Martin Romjue, LCT editor

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