On May 7, 2013, the United States Court of Appeals for
the District of Columbia struck down the National Labor Review Board's
("NLRB") notice rule, which requires employers under its jurisdiction
to display posters notifying employees of their rights under the National Labor
Relations Act ("NLRA"). Nat'l Assn of Mfrs v. NLRB, Case No.
12-5068 (D.C. Cir., May 7 2013) [an enhanced version of this opinion is available to lexis.com
subscribers]. The NLRB's August 2011 rule made the failure to
display the notice an unfair labor practice under the NLRA. The decision of the
circuit court relieves employers of the obligation to post the notice of
The court held that the notice rule violated employers' rights to free speech
under section 8(c) of the NLRA. Section 8(c) prohibits the NLRB from relying as
evidence of an unfair labor practice "[t]he expressing of any views,
argument, or opinion, or the dissemination thereof * * * if such expression
contains no threat of reprisal or force or promise of benefit." Drawing
upon First Amendment precedent, the court held that requiring employers to post
the notice impermissibly infringed on the employers' rights "not to
speak," which section 8(c) necessarily protects.
The court further held that the NLRB could not enforce the notice rule by
tolling the six-month statute of limitations for employee claims of unfair
labor practices in circumstances in which the employer failed to display the
notice. The court reasoned that when Congress imposed the six-month statute of
limitations it did not intend for the statute to be tolled on a theory of
equitable tolling that was only invented by the Board sixty-some years later.
The circuit court's decision is a win for employers, who have been on the
receiving end of the NLRB's escalating campaign to regulate workplace
communications. Unless and until the United States Supreme Court says
otherwise, employers have no obligation to post notices of employee rights
under the NLRA.
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by Barran Liebman attorneys.
are written by Barran
Liebman attorneys for their clients and friends. Alerts are not
intended as legal advice, but as employment law, labor law, and employee
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