Court Rules NLRB's Posting Rule Invalid

Originally published by: NY Labbor and Employment Law ReportMay 8, 2013

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On May 7, 2013, the U.S. Court of Appeals for the D.C. Circuit held that the rule promulgated by the National Labor Relations Board ("NLRB") requiring employers to post a notice of employee rights under the National Labor Relations Act ("NLRA") is invalid.  The D.C. Circuit had previously granted an injunction on April 17, 2012 precluding the NLRB from implementing its notice posting rule.

The appeal to the D.C. Circuit came after the U.S. District Court for the District of Columbia issued a decision in the lawsuit filed by the National Association of Manufacturers and the National Right to Work Legal Defense and Education Fund.  In that lower court decision, the District Court held that the NLRB had the authority to require employers to post the notice, but did not have the authority to determine that failure to post the notice would be an unfair labor practice and did not have the authority to permit tolling of the six-month statute of limitations for unfair labor practice charges if an employer fails to post the notice.

The D.C. Circuit held that all three of the mechanisms for enforcing the NLRB's posting requirement were invalid, which rendered the entire rule invalid.  The three enforcement mechanisms set forth in the rule were:  (1) failure to post the notice would be an unfair labor practice; (2) failure to post the notice could be used as evidence of anti-union animus in unfair labor practice cases in which the employer's motive is at issue; and (3) failure to post the notice could result in tolling of the six-month statute of limitations for unfair labor practice charges.

The D.C. Circuit found that the first two enforcement mechanisms constituted violations of an employer's free speech rights under Section 8(c) of the NLRA.  Section 8(c) of the NLRA provides that "the expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit."  The D.C. Circuit analyzed this provision in the context of Supreme Court decisions interpreting the First Amendment, and concluded that Section 8(c) not only protects an employer's right to express its views regarding unionism in a non-coercive manner, but also protects an employer from being compelled by the NLRB to disseminate information about unionism that it does not wish to disseminate.  The D.C. Circuit also found that the third enforcement mechanism -- the tolling of the six-month statute of limitations -- constituted an impermissible amendment to the statute of limitations that Congress expressly set forth in the NLRA.

There is still an appeal pending in the Fourth Circuit Court of Appeals on the same issue of whether the NLRB's notice posting rule is invalid.  That appeal arose out of a decision rendered by the U.S. District Court for the District of South Carolina, holding that the NLRB did not have the authority under the NLRA to promulgate the rule.

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