Employers: 1, NLRB: 0 – Controversial “Poster Rule” Struck Down

Earlier this week, a federal appeals court ruled that the National Labor Relations Board’s “notice poster rule” – which would have required essentially all private sector employers to post a notice informing employees of various rights provided by the National Labor Relations Act – was invalid.

The rule has been controversial since it was announced by the NLRB in August 2011. For the court, however, it wasn’t the rule itself that was the problem, but the Board’s methods for enforcing it.

Here’s the background, from attorneys at Duane Morris:

“As an enforcement mechanism, the rule provides that an employer’s failure to post the notice is an ‘unfair labor practice’—that is, merely failing to post the notice may be found to interfere with, restrain or coerce employees in the exercise of their rights under the NLRA, in violation of Section 8(a)(1) of the NLRA. The rule contains two additional enforcement devices: The NLRB may suspend the running of the six-month limitations period for filing any unfair labor practice charges, and the NLRB may consider an employer’s knowing and willful failure to post the notice as evidence of unlawful motive in unfair labor practice cases.”

There are two things wrong with those tactics, said the court. First, the NLRB cannot punish employers who don’t post the notice because it violates their rights to free speech. Attorneys Daniel Johns and Kelly Kindig of Ballard Spahr:

“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.’”

Second, the NLRB is not free to suspend the statute of limitations, writes Doug Hass of law firm Franczek Radelet:

“The court also rejected the notice posting rule because it impermissibly allowed the Board to delay (or “equitably toll”) the six-month statute of limitations for filing unfair labor practice charges. The court determined that there was no evidence that Congress intended to allow the Board to amend the Act’s statute of limitations.”

Without the enforcement mechanisms, the rule is invalid. From attorneys at FordHarrison:

“The court … determined that the Board would not have published the rule depending on voluntary compliance because it rejected that option in the preamble to its final rule. Accordingly, the court held that the entire rule must fall since its enforcement provisions are invalid.”

And that’s good news for employers. From Baker Donelson:

“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.”

At least until the next round…

The updates:

Related reading:

Find additional National Labor Relations Board updates at JD Supra Law News>>