D.C. Circuit Vacates NLRB Poster Rule


The U.S. Court of Appeals for the District of Columbia Circuit has vacated a controversial rule issued by the National Labor Relations Board (NLRB) that would have required most private sector employers covered by the National Labor Relations Act (NLRA) to post a notice advising employees of their rights under the Act. That rule would have made it an unfair labor practice for an employer to fail to post the notice, and would have allowed the NLRB to toll the six-month statute of limitations for filing charges and to use an employer’s refusal to post the notice as evidence of anti-union animus under the NLRA.

The court’s decision is a significant victory for employers at a time when the NLRB has made clear its goal of employee outreach. The NLRB has announced that it will continue to delay enforcement of the rule pending the outcome of litigation over its validity.

Basing its decision on the free speech rights of employers, the court found that the NLRB’s poster rule was squarely at odds with Section 8(c) of the Act. This section provides that the expression or dissemination of any views or opinions—whether in written, printed, graphic, or visual form—cannot constitute evidence of an unfair labor practice where no threats of reprisal or promise of benefit is made.

The court drew upon fundamental First Amendment principles, finding that an employer has a right to choose whether or not to disseminate a particular view and noting that the U.S. Supreme Court has held that “freedom of speech prohibits the government from telling people what they must say.” Because an employer has a right to speak and not to speak, the court held that the rule violated Section 8(c) of the Act by making an employer’s failure to post the notice both an unfair labor practice and evidence of anti-union animus.

Turning to the rule’s tolling provision, the court also found that the NLRB exceeded its authority under the Act, which sets forth a six-month statute of limitations for filing unfair labor practice charges. Under the doctrine of equitable tolling, the rule would have allowed the Board to toll that limitations period concerning employers who fail to post the notice. The court rejected the Board’s tolling arguments, finding that Congress did not intend for that doctrine to apply to the Act’s limitations period.

In light of its holding that the three enforcement mechanisms of the NLRB’s rule were invalid, the court struck down the entire rule. The court declined to consider whether the NLRB had the authority under the Act to promulgate the rule in the first instance.

The court’s decision follows closely on the heels of its decision in Noel Canning v. NLRB, in which the court invalidated President Barack Obama’s recess appointments to the NLRB. Referencing that previous decision, the court briefly reviewed whether the NLRB had the requisite quorum necessary to enact the rule, and found that it did. The court also noted that a federal district court in South Carolina had invalidated the poster rule, and that the issue also is pending before the Fourth Circuit.

Attorneys in Ballard Spahr’s Labor and Employment Group can assist clients in NLRA compliance and other workplace issues. If you have questions, please contact Daniel V. Johns at 215.864.8107 or johns@ballardspahr.com, Kelly T. Kindig at 215.864.8652 or kindigk@ballardspahr.com, or the member of the Group with whom you work.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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