On August 30, 2011, with the then-one Republican member dissenting, the National Labor Relations Board promulgated a rule that would require for the first time that all private employers in the country post a notice advising employees in detail of their statutory rights to unionize and engage in union activities. Employers who fail to post the notice would be guilty of a new, Board-created unfair labor practice, could lose the protection of the National Labor Relations Act’s six-month statute of limitations, and could have that failure be considered as evidence against them in cases involving other unfair labor practices. The posting requirement is not yet effective, due to litigation brought against the Board challenging its authority to promulgate this rule. In a case brought by the National Association of Manufacturers, the National Right to Work Legal Defense Foundation, and others, the United States District Court for the District of Columbia held that the Board has the authority to require all employers to post the notice. It struck down the penalty provisions insofar as they would be blanket rules, but permitted the Board to apply them on a case-by-case basis. However, soon thereafter, in a case brought by the U.S. Chamber of Commerce, the United States District Court for the District of South Carolina held that the Board lacked statutory authority to promulgate the notice-posting rule. Both district court decisions have been appealed. The D.C. Circuit enjoined enforcement of the rule pending its decision, and heard argument on September 11, 2012. The Fourth Circuit heard oral argument on March 19, 2013 in the Board's appeal from the South Carolina district court’s decision. Maury Baskin of Venable LLP, who argued for the D.C. plaintiffs, and SEIU Associate General Counsel Walter Kamiat discuss the issues and give their assessment of the arguments in the two courts of appeals.
- Mr. Maurice Baskin, Partner, Venable LLP
- Mr. Walter Kamiat, Associate General Counsel, Service Employees International Union
- Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society