D.C. Circuit Vacates NLRB Poster Rule

by Ballard Spahr LLP

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.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.