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D.C. Circuit Court of Appeals Invalidates NLRB Notice Posting Rule

May 9, 2013

On May 7, 2013, the D.C. Circuit Court of Appeals invalidated the 2011 rule published by the National Labor Relations Board (the “NLRB”), which would have required virtually all private-sector employers to post a notice in the workplace of an employee’s rights under the National Labor Relations Act (“NLRA”). In National Association of Manufacturers v. NLRB, the court vacated the NLRB Rule (the “Rule”), finding that the NLRB had no authority to implement the mechanisms it selected for enforcement, thereby relieving virtually all employers of the onerous burdens associated with compliance with the Rule.

As highlighted in Wolff & Samson’s September 2011 Employment Law Alert, the Rule would have required virtually all employers to prominently post in the workplace a new poster describing an employee’s rights under Section 7 of the NLRA, including (among other things) the right of employees to bargain collectively with the employer. Under the Rule, the failure to post the notice could be tantamount to an unfair labor practice, or evidence of an unfair labor practice. The Rule also gave the NLRB the right to toll the six-month statute of limitations for claims filed by an employee if an employer failed to comply with the posting requirement. Originally slated to go into effect 18 months ago, implementation of the Rule was twice delayed and ultimately indefinitely postponed pending resolution of various lawsuits challenging the NLRB’s authority to impose this new posting requirement.

In its recent decision, the court vacated the Rule, holding that the NLRB lacked the authority to implement the enforcement mechanisms. The court determined that the first two enforcement mechanisms – that an employer's failure to post the notice would constitute an unfair labor practice and that such failure would be treated as evidence of an unfair labor practice – violated an employer’s free speech rights under Section 8(c) of the NLRA. Indeed, Section 8(c) specifically limits the NLRB’s authority and protects an employer’s right to engage in non-coercive speech, as well as an employer’s right to disseminate (or not to disseminate) its own or another’s non-coercive speech. Because these enforcement mechanisms were designed to accomplish precisely what Section 8(c) prohibits, the court held that the NLRB had no authority to utilize those enforcement mechanisms.

The court also concluded that the NLRB had no authority to extend the six-month statute of limitations where an employer failed to post the notice under the guise that the employee presumably had no actual or constructive knowledge of his/her Section 7 rights. The court determined that this enforcement mechanism improperly amended the statute of limitations set forth in Section 10(b) of the NLRA. Moreover, the court determined that the Board’s proffered basis for tolling – an employee’s purported ignorance of the law – was invalid. With all three mechanisms for enforcing the Rule rendered invalid, the Court of Appeals vacated the entire Rule.

Unless the NLRB successfully appeals this decision to the United States Supreme Court, employers cannot be required to comply with the notice posting rule, and will not be required to post the NLRA Rights poster in the workplace.

For more information, please contact:

Catherine P. Wells, Member of the Firm
(973) 530-2051 |  

Margaret O’Rourke Wood, Member of the Firm
(973) 530-2063 |  

Denise J. Pipersburgh, Associate
(973) 530-2090 |