NLRB Poster Rule Invalid: DC Circuit | Practical Law

NLRB Poster Rule Invalid: DC Circuit | Practical Law

In National Association of Manufacturers v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board's (NLRB) rule requiring private employers to post a notice explaining employees' rights under the National Labor Relations Act (NLRA) was invalid.

NLRB Poster Rule Invalid: DC Circuit

Practical Law Legal Update 0-527-9445 (Approx. 4 pages)

NLRB Poster Rule Invalid: DC Circuit

by��PLC Labor & Employment
Published on 07 May 2013 • USA (National/Federal)
In National Association of Manufacturers v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the National Labor Relations Board's (NLRB) rule requiring private employers to post a notice explaining employees' rights under the National Labor Relations Act (NLRA) was invalid.
On May 7, 2013, the US Court of Appeals for the District of Columbia Circuit issued an opinion in National Association of Manufacturers v. NLRB holding that the NLRB's rule requiring employers to post a notice informing employees of their rights under the NLRA was invalid. The DC Circuit had earlier granted an emergency motion enjoining the NLRB from enforcing its notice posting rule pending the case's appeal (see Legal Update, NLRB Poster Rule Enjoined Indefinitely: DC Circuit).
The DC Circuit held that the NLRB's poster rule is invalid because each of the three ways in which the NLRB would enforce its poster rule was invalid. In particular, the court found that the NLRB could not lawfully:
  • Make a failure to post the notice an unfair labor practice (ULP).
  • Interpret a failure to post the notice as evidence of anti-union animus in NLRB proceedings.
  • Toll the six-month statute of limitations indefinitely for employees to file ULP charges against an employer that fails to post the notice.
The court did not address the issue of whether the NLRB had authority to issue its poster rule. However, noting the NLRB's intention not to maintain a posting rule that depended on voluntary compliance, the DC Circuit invalidated the entire rule once it invalidated the NLRB's mechanisms for enforcing the posting requirement. The NLRB has not yet announced how it will respond to the decision.
Court documents: