Federal appeals court strikes down union notification requirement

WASHINGTON -- A federal appeals court here struck down Tuesday a rule that would have required more than 6 million private employers to post notices telling workers of their right to join a union.

The decision is the latest setback for unions and the Obama administration at the hands of the conservative-leaning appeals court in Washington.

When President Obama took office, union leaders hoped that a reenergized National Labor Relations Board could stop or reverse the long decline in union membership. Only about 7% of private workers in the U.S. belong to unions.

Two years ago the board adopted a rule requiring employers to post a “notification of employee rights” in their workplaces. The one-page form was to include the basic rights protected by federal labor law, including the right to join a union and to go on strike.

But the National Assn. of Manufacturers (NAM) and several anti-union groups went to court to challenge the rule before it could take effect.

On Tuesday, a three-judge panel of the Court of Appeals of the District of Columbia Circuit struck down the rule on the grounds that the NLRB had overstepped its authority under law. Judge Raymond Randolph described the rule as government “compelled speech.”

“Like the freedom of speech guaranteed in the 1st Aendment, [federal labor law] necessarily protects the right of employers and unions not to speak,” Randolph said. But he stopped short of declaring the poster rule a 1st Amendment violation. Instead, he said the NLRB overstepped its authority by deciding that an employer’s failure to post the required notice was an unfair labor practice.

Judges Janice Rogers Brown and Karen Henderson joined his opinion. All three judges were appointed by Republican presidents.

NAM called the decision an “important victory in the fight against an activist NLRB and its aggressive agenda.”

In January, the same appeals court ruled that Obama had illegally appointed members of the NLRB when the Senate was on a brief recess. The judges sharply limited the president’s power to make “recess appointments” and cast doubt on a series of legal actions taken by the NLRB.

Obama has been unable so far to appoint a judge to the appeals court. One of his nominees, New York attorney Caitlin Halligan, withdrew this spring after the Republican minority in the Senate blocked her confirmation.

[For the Record, 1:27 p.m. PST May 7: An earlier version of this post highlighted Judge Janet Rogers Brown. Her name has since been corrected to Janice Rogers Brown.

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david.savage@latimes.com