NLRB Poster Requirement Struck Down by Federal Appeals Court

On May 7, the U.S. Court of Appeals for the District of Columbia invalidated the National Labor Relations Board’s rule requiring employers to post notices of workers’ rights under the National Labor Relations Act (NLRA). National Ass’n of Mfrs. v. NLRB (D.C. Cir. 2013). The original regulation was promulgated in August of 2011 and was immediately challenged by multiple business groups. It was scheduled to go into effect last year, but that effective date was put on hold pending the outcome of various legal challenges.

The court outlined two separate problems with the poster rule in its decision. First, the court ruled that the posting rule was inconsistent with the free speech protections included in the NLRA. Specifically, Section 8(c) of the NLRA “precludes the Board from finding noncoercive employer speech to be an unfair labor practice or evidence of an unfair labor practice.” The rule at issue would have made failing to post the notice, itself a “noncoercive” action, an unfair labor practice. Second, the court held that the NLRB cannot unilaterally toll the statute of limitations in cases where the employer does not post the notice, as Congress did not intend to allow such tolling when it passed the NLRA.

The Board argued that the NLRA gave it the authority to write and enforce rules that “may be necessary to carry out the law’s provisions.” The Board insisted that the poster rule was necessary to inform employees of their rights, as employees “must know those rights exist” in order to enforce them. The court, however, ruled that the poster rule overstepped the Board’s boundaries under the law.

Many MSEC members were frustrated by the potential posting requirement. While the NLRB could appeal the decision to the U.S. Supreme Court, and a similar issue is facing the Fourth Circuit Court of Appeals, it looks increasingly likely that the poster requirement will not be upheld in its current form.