The U.S. Court of Appeals for the D.C. Circuit heard oral arguments on Sept. 11 from an ABC-led coalition of business groups in opposition to the National Labor Relations Board’s (NLRB) “employee rights” notice posting rule, which is on hold pending the outcome of the appeal.  ABC general counsel Maury Baskin of Venable LLC argued the case to the appeals court on behalf of the entire business community.

If the NLRB rule is allowed to go into effect, employers would be required to display a poster in their workplace that contains a biased and incomplete list of employee rights under the National Labor Relations Act. Last April 17, the court of appeals issued an injunction pending appeal in response to a request by the ABC-led Coalition for a Democratic Workplace. The U.S. District Court of the District of Columbia had previously issued an unfavorable March 2 decision declaring that the NLRB had the authority to mandate the notice posting. However, the court partially struck down the rule’s blanket enforcement policies. On April 13, another federal judge declared the entire rule to be invalid.

Baskin told the appeals court that the challenged rule would, for the first time in the history of the Act, force some 6 million employers around the country to communicate a pro-union message to their employees.  “The rule must be set aside because the board cannot show that Congress expressly or implicitly delegated authority to issue it,” said Baskin. He further argued that the rule violates the plain language of numerous provisions of the Act, including Section 8(c), which states that ‘expressing of any views shall not constitute or be evidence of an unfair labor practice.’” “The board is seeking limitless authority over employers, in a manner which is directly contrary to congressional intent and numerous Supreme Court holdings over the past 77 years,” Baskin said.

“For the past year, ABC has vigorously fought NLRB’s politically motivated policies that threaten to paralyze the construction industry in order to benefit the special interests of politically powerful unions,” stated ABC Vice President of Federal Affairs Geoff Burr. “The NLRB’s notice posting rule is a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.”

No final decision in the case is expected until after the Presidential election. Meanwhile, the current injunction remains in effect, and the NLRB cannot enforce its challenged notice requirement. For more information on the NLRB poster rule and on the court decisions, visit www.abc.org/NLRBposter.