It turned out to be a good day for a Lehigh Valley business owner when the U.S. Court of Appeals in Washington, D.C. ruled in favor today of the National Federation of Independent Business in its challenge to the National Labor Relations Board’s “Notice Posting Rule.”
John Brinson, owner of Lehigh Valley Racquet & Fitness Centers, filed a suit after being told by the NLRB that he had to post union-organized business posters at his workplace, an action he said he disagreed with doing. NFIB represents small businesses in every state in the nation.
Brinson told Lehigh Valley Business that as a NFIB member, the organization asked him to be a co-plaintiff in this suit against the NLRB – first filed about two years ago – to stop the labor board from requiring businesses to post these notices. Brinson, who owns clubs in Allentown, Trexlertown and Bethlehem, agreed to join the suit, as did a business owner from Georgia.
Brinson said the labor board's plan was to force all business owners to post instructions on how to form a union at their place of business. The district court ruled against the NFIB, however, and Brinson said they appealed.
Reversing the decision of the district court, the circuit court found that the NLRB does not possess the authority to require that the posters be displayed in places of business, said the NFIB in a statement. Further, circuit court affirmed the district court's determination that the board lacks the legal authority to enforce the poster rule as an unfair labor practice.
In response to the ruling, Hank Breiteneicher, a spokesman for the NLRB, said the organization issued the following statement from a board spokesperson: "The board is currently reviewing the court's decision on the employee rights notice rule and will make a decision on further proceedings at the appropriate time. The rule is also currently under review by the fourth circuit."
Brinson said the news was unexpected.
"I didn't think we'd succeed at the U.S. Court of Appeals," he said. "But they had a good argument. The right to free speech also includes what you don't want to say, and you can't be forced to say what you don't want to say."
Basically, Brinson said it shows there are limits to what government can force businesses to do.
"It's a huge win, I never expected it," he said. "Now at least they can't force us to encourage our employees to form unions."
NFIB paid the entire cost of the legal action, Brinson said.
"The NLRB has over the last several years chosen to use the regulatory process to accomplish what could not be done through the legislative process," said Kevin Shivers, executive state director for the NFIB Pennsylvania chapter. "This time, the appeals court called them out on it."
Shivers told Lehigh Valley Business that getting small business owners to act as union organizers is not something that's the responsibility of an employer. There is no place for that type of activity in the workplace, he added.
NFIB is a national small-business advocacy organization, representing 350,000 small businesses around the country. The organization represents 15,000 members in Pennsylvania.