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D.C. Court of Appeals Vacates NLRB Notice Posting Rule

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May 8, 2013

By Doug Hass

A federal appellate court yesterday rejected the National Labor Relations Board’s “notice posting rule” that would have required nearly 6 million employers to conspicuously display the Board’s employee-rights poster. Last spring, we covered rulings by federal district courts in Washington D.C. and South Carolina that blocked the Board’s proposed rule. Last April, the U.S. Court of Appeals for the District of Columbia Circuit put the rule on hold pending an appeal by the National Association of Manufacturers (NAM) and the National Federation of Independent Business (NFIB). In yesterday’s decision, the D.C. Circuit vacated the Board’s notice posting rule, finding that all three of the rule’s enforcement mechanisms were invalid.

The D.C. Circuit pursued a different angle than the litigants, finding that the Board’s notice posting rule violated Section 8(c) of the National Labor Relations Act and impermissibly infringed on employers’ First Amendment rights. The Board had argued, among other things, that the content of the poster constituted the Board’s speech, not the employer’s speech, and that the poster was “non-ideological,” and therefore differed from other cases where the Supreme Court had found compelled speech unlawful.

Writing for a unanimous 3-judge panel, Senior Judge A. Raymond Randolph found that the Board’s decision to make an employer’s failure to post the notice an unfair labor practice violated “the right of employers (and unions) not to speak.” Citing extensive Supreme Court authority, the D.C. Circuit noted that the First Amendment not only prevents the government from prohibiting speech, but also may prevent the government “from compelling individuals to express certain views.” Citing Section 8(c) of the National Labor Relations Act, Judge Randolph noted that this provision similarly protected the Board from charging an employer with an unfair labor practice for refusing to engage in speech.

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.

Judge Karen LeCraft Henderson, joined by Judge Janice Rogers Brown, wrote separately that she would have found the Board also lacked authority to promulgate the notice posting rule under Section 6 of the National Labor Relations Act, the provision on which the NAM, NFIB, and the Board had focused their briefings to the court.

For now, employers are not required to post the NLRB’s notice.  However, another challenge to the NLRB’s notice posting rule remains pending before the United States Court of Appeals for the Fourth Circuit. We will continue to report on any future developments in this area.

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