NLRB Poster Rule Torn Down by the D.C. Circuit

by Baker Donelson

In August 2011, the National Labor Relations Board (NLRB) attempted to implement a rule requiring every employer in the United States to post a "notice" of union organizing rights. After an almost two-year battle, the courts have ruled that the NLRB cannot force employers, under the threat of an unfair labor practice finding or the tolling of the period for an employee to file a charge, to post on their properties and on their websites a "Notification of Employee Rights." Tuesday's D.C. Circuit ruling in Nat'l Ass'n of Mfrs. v. NLRB brings much relief to the nearly six million employers, including a large number of small businesses, that the posting rule would affect.

Under the NLRB rule, if an employer failed to post the notice, there were three enforcement mechanisms:

(1) An employer's failure to post the notice would be considered an unfair labor practice;

(2) the NLRB may suspend the running of the six-month limitations period for filing any unfair labor practice charge "unless the employee has received actual or constructive notice that the conduct complained of is unlawful,"; and

(3) the NLRB may consider an employer's "knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue," thereby allowing the NLRB to find yet another violation of the National Labor Relations Act (NLRA).

Trade associations and other organizations representing employers across the country filed complaints in the district court arguing that the rule violated the NLRA and the First Amendment.

The NLRB claimed authority to promulgate the rule under Section 6 of the NLRA to make "such rules and regulations as may be necessary to carry out the provisions" of the Act, claiming that employees in today's working environment need to know their rights to be able to enforce them. However, opponents of the rule and the D.C. Circuit Court focused their analysis on Section 8(c) of the Act, which provides:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit. (emphasis added)

The court held that the Rule allowed the NLRB to find "non-coercive employer speech to be an unfair labor practice [and] evidence of an unfair labor practice," both of which are prohibited.

The NLRB argued that the rule did not violate Section 8(c) because the poster was not the speech of the employer, but instead, the speech of the NLRB, as it is the NLRB's required wording on the poster. The court, relying on well-established First Amendment law, flatly rejected this argument, noting both that the First Amendment "prohibits the government from telling people what they must say," citing Rumsfeld v. Forum for Academic & Institutional Rights, Inc., and that the First Amendment and Section 8(c) include not only the right of free speech, but also the right not to speak, i.e., the right not to communicate the message in the NLRB's poster. Thus, under this reasoning, the court struck down the first and third enforcement mechanisms mentioned above as a violation of Section 8(c).

Finally, turning to the enforcement mechanism that would toll the period for filing any unfair labor practice charge if an employer failed to post the notice, the court found that the NLRB failed to invoke any authority suggesting that Congress, when the NLRA was enacted in 1947, intended to allow the tolling period set forth in Section 10(b) to be modified in the manner set forth in the rule. As such, the NLRB had no authority to alter the Act's limitations period.

Because the court found that each of the rule's enforcement mechanisms were invalid, it did not reach the question of whether the NLRB had the regulatory authority to require employers to post the notice, because it found that without the enforcement mechanisms, the rule would be left with only voluntary compliance, and the NLRB would not have adopted the rule without any means to enforce it.

This D.C. Circuit ruling solidifies the right of employers to choose how it communicates with its employees about union issues, and thwarts the NLRB from using employers to educate employees on its own agenda. If you have questions about this ruling, or other NLRB issues, please contact any of our more than 70 Labor & Employment attorneys.

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.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson 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.
Custom Email Digest
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 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:

- 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.