To Post Or Not To Post: D.C. Appeals Court Strikes Down NLRB Employee Rights Posting Requirement

On May 7, a three-judge panel of the United States Court of Appeals for the District of Columbia unanimously struck down a rule of the National Labor Relations Board ("NLRB") that would have required employers to post a notification to employees of their rights under the National Labor Relations Act ("Act"). National Association of Manufacturers, et al. v. National Labor Relations Board.

The "Notification of Employee Rights under the National Labor Relations Act" was to have been posted on employers' properties and on their websites. Failure to post would have been an unfair labor practice. The rule would have applied to nearly six million employers. In addition to requiring notice, the rule contained two very significant provisions. The first would have tolled the six-month filing period for unfair labor practice charges unless the employee had received actual or constructive notice that the conduct was unlawful. The second would have allowed the failure to post to be used as evidence of unlawful motive in cases in which motive of discrimination was an issue.

Noting that adoption of this rule through the NLRB's rulemaking authority marked a departure from its historic practice of establishing principles through adjudication of cases, the Court concluded that the NLRB's rule ran afoul of Section 8(c) of the Act, which guarantees employers a right of free speech so long as their communications did not contain a threat of reprisal or force, or a promise of benefit.

The Court said that the NLRB's posting rule would have allowed the NLRB to find that non-coercive employer speech was both an unfair labor practice and evidence of an unfair labor practice – both of which are precluded by Section 8(c). The Court rejected the NLRB's contention that the required posting constituted the NLRB's speech, rather than that of any employer, and held that the First Amendment and Section 8(c) protect employers from being forced to disseminate the NLRB's message, even if that message is no more than a reiteration of employees' rights under the Act.

Insofar as the NLRB's rule would have tolled the six-month filing period, this, according to the Court, exceeded the NLRB's statutory authority in that it would effectively amend the statute of limitations that Congress had set out in the statute.

The NLRB was therefore enjoined from enforcing this posting requirement. It seems unlikely the NLRB will not pursue further appeals to the entire D.C. Court of Appeals or possibly the U.S. Supreme Court. Employers should therefore continue to monitor this issue.

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