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Labor Poster Requirement Struck Down by U.S. Court of Appeals

May 9, 2013
Labor and Employment Advisory

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit vacated the National Labor Relations Board's (NLRB) Notice Posting rule that required employers subject to its jurisdiction to post a Notice to Employees advising them of their rights under the National Labor Relations Act (NLRA).

The controversial rule had already suffered several major setbacks. The NLRB had previously postponed the effective date of the rule on a couple occasions. Further, in April 2012,  the U.S. Court of Appeals for the District of Columbia Circuit enjoined the rule until it had the opportunity to consider the merits of the case after the penalty provision of the rule was struck down by the U.S. District Court for the District of Columbia. The U.S. District Court for the District of South Carolina struck down the rule in its entirety, holding that the NLRB lacked the authority to require employers to post notices in the workplace informing employees of their rights under the NLRA.

In Tuesday's ruling, the Court found that none of the NLRB's three enforcement mechanisms for the rule were valid. First, the Court found that Section 8(c) gives employers both a right to speech as long as the speech does not contain threats, as well as the right not to speak.  Second, the Court held that the rule violated Section 8(c) because it made the employer's failure to post the NLRB's notice an unfair labor practice or evidence of anti-union animus in cases involving other types of unfair labor practices. Finally, the Court rejected the NLRB's argument that the statute of limitations period for filing an unfair labor practice charge would toll if an employer has not put up the poster. Based on this, the Court concluded that the entire rule must fall since the NLRB would not issue a rule that depended "solely on voluntary compliance."

Because the rule did not survive on Section 8(c) grounds, the Court did not address whether the rule could survive under Section 6, which gives the NLRB the power to issue rules necessary to carry out the NLRA's  other provisions. However, the two concurring judges, who agreed with the decision based on a Section 8(c) violation, also wrote that they would have found the NLRB's rule invalid under Section 6 as well.

For now, employers no longer have to implement the Notice Posting rule at their workplace. While there is another appeal pending in the Fourth Circuit, the NLRB has stated that it will not implement the rule unless and until the Fourth Circuit or the Supreme Court upholds the rule.

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