D.C. Circuit Invalidates NLRB’s Notice Posting Rule

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

In yet another blow to the National Labor Relations Board (NLRB), today the D.C. Circuit Court of Appeals in National Association of Manufacturers v. National Labor Relations Board reversed an earlier ruling of the U.S. District Court for the District of Columbia and held that the NLRB’s notice posting rule is invalid. The district court had held that the Board was without power to extend the statute of limitations under the National Labor Relations Act (NLRA) or make a blanket advance determination that a failure to post will always constitute an unfair labor practice. But the court held that the Board did have the authority to require notice posting in the first place and to find that a refusal to post the notice could be considered evidence of improper motive, such as to support a finding of animus in an unrelated unfair labor practice (ULP) charge.

The D.C. Circuit found that all of the remedies provided for by the notice posting rule were beyond the authority of the NLRA. The court held that the ULP and animus remedies violated employers’ §8(c) rights under the NLRA to express their views, arguments, and opinions on unionization without fear of it being viewed as an unfair labor practice, so long as the communications contained no threat or promise. Analogizing to cases decided under the First Amendment to the U.S. Constitution, the D.C. Circuit held that “[t]he right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.” Therefore, the court found that “the Board’s rule violates §8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus.”

Moving to the tolling remedy, the court found that there was no reason to believe that Congress had envisioned any application of equitable tolling when it passed the NLRA in 1947. Accordingly, the tolling remedy was directly contrary to the Act and could not stand. Having found that all three remedies for violation of the notice posting rule were invalid, the D.C. Circuit went on to find that the Board had specifically rejected a voluntary model for notice posting, so the posting requirement was not severable from the remedies provided. Since the remedies were invalid, the entire rule was necessarily invalid.

In a concurring opinion, Judge Karen LeCraft Henderson went one step further and found that the Board lacks the authority to promulgate any rule requiring notice posting, regardless of the remedies supplied to address violations of the rule. This finding is consistent with District Judge David C. Norton’s decision in Chamber of Commerce of the United States v. NLRB, which is currently pending on appeal to the Fourth Circuit Court of Appeals.

This is yet another development contributing to a rough year for the NLRB. In January, the D.C. Circuit issued its decision in Noel Canning v. NLRB, finding that the NLRB has been operating without a valid quorum since at least January 4, 2012 and that all of its actions since that time are void. In the wake of Noel Canning, the NLRB indicated publicly that the decision of the D.C. Circuit was limited to the case before it and that the Board would continue “business as usual.” In the past, when the D.C. Circuit has invalidated an agency action, the agency has voluntarily given that judgment nationwide application. That appeared to be the approach that the Board was taking following the ruling of the U.S. District Court for the District of South Carolina invalidating the notice posting rule shortly after the district court in D.C. upheld it. Given the Board’s recent actions, however, and its increasingly antagonistic posture towards the D.C. Circuit, it is hard to say with any certainty how it will react to today’s ruling.

Benjamin P. Glass is a shareholder in the Charleston office of Ogletree Deakins.


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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