D.C. Circuit Court Strikes down NLRB Posting Rule

The National Labor Relations Board (“Board”) had previously passed a rule that employers who were subject to its jurisdiction were required to post on their properties and websites a “Notification of Employee Rights under the National Labor Relations Act.” The posting basically advises employees of their rights to: 

• form, join, or assist a union;
• bargain collectively through representatives of their choosing;
• discuss wages, benefits, and other terms and conditions of employment with fellow employees or a union;
• take action to improve working conditions;
• strike and picket; or
• choose not to do any of those things.

Failure to post this information would subject the employer to an unfair labor practice charge. If an employer is found to have violated this rule, the Board may suspend the running of the six-month limitations period for filing any unfair labor practice charge, and the Board may consider whether the employer knowingly and willfully refused to comply with the law.  

Various organizations and trade associations filed suit, claiming the rule violated the National Labor Relations Act (Act) as well as the First Amendment to the U.S. Constitution. Cross-motions for summary judgment were filed. The district court found that the Board had the authority to promulgate the posting rule and that it was reasonably related to the purposes of the Act. The court found, however, that the Board had no authority to make a “blanket advance determination that a failure to post will always constitute an unfair labor practice,” and also found invalid the section of the rule which tolled the limitations period. Notwithstanding the fact that two of the three means of enforcing the rule were found to be invalid, the court held that the Board would have wanted the posting requirement to stand.

The employers appealed, and the Board cross-appealed. 

The D.C. Circuit Court of Appeals struck down the notice rule as invalid. The court found that Section 8(c) of the Act “precludes the Board from finding noncoercive employer speech to be an unfair labor practice or evidence of an unfair labor practice,” but that here, the Board’s rule did both: 

 “….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 failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated firings or refusals to hire — in other words, because it treats such a failure as evidence of an unfair labor practice.” 

The court then found, as the district court did, that the Board’s tolling rule was contrary to §10(b) and thus could not stand. Because all three of the means for enforcing the Board’s posting requirement were found invalid, the court vacated the Board’s posting rule.