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On January 25, 2013, the United States Court of Appeals for the District of Columbia in Noel Canning v. NLRB held that National Labor Relations Board (“NLRB”) orders issued since January 2, 2012 are unenforceable. The D.C. Circuit court based its decision on its determination that the intrasessional recess appointments of three NLRB members were unconstitutional such that the NLRB has lacked a quorum of properly appointed members since then. In the wake of that ruling, the NLRB nonetheless has continued to conduct business as if the President’s recess appointments were proper and, on April 25, 2013, the NLRB petitioned the Supreme Court of the United States to overturn Noel Canning. As a result, the controversy continues though employers can be fairly certain that once NLRB appointments are either confirmed or correctly processed, future NLRB decisions during the current administration will mirror those the Noel Canning decision may have affected.

On May 7, 2013, the D.C. Circuit court in National Assn. of Mfrs. v. NLRB struck down a rule the NLRB issued in 2010 requiring private sector employers to post a notice concerning employees’ rights under the National Labor Relations Act (“NLRA”). The rule had been challenged in two federal court cases, with the lower court in South Carolina finding the rule invalid and the one in the District of Columbia upholding the posting requirement, but striking down the sanctions for employers failing to post the notice. Both decisions were appealed and, while the NLRB had suspended enforcement of the rule pending the appeals, National Assn. of Mfrs. v. NLRB is the first time a federal appeals court has concluded that the NLRB overstepped its authority in requiring employers to post a notice generally informing employees of their NLRA rights. Although the court determined that a quorum of properly appointed NLRB members existed when that rule was issued, the D.C. Circuit ruled against the NLRB based on the rule’s infringement of an employer’s right to free speech. The federal appeals court considering the South Carolina case has yet to rule, but its decision is likely also to affirm the lower court decision invalidating the notice posting rule.

The current NLRB continues to take unprecedented steps intruding into workplaces, even in the absence of unions or union activity. The notice posting rule is a prime example given that no NLRB in the first 75 years of the NLRA had ever issued such a regulation. As a result, more than ever, employers need to be aware of developments in this area as cases wind through the courts.