DC Circuit Invalidates NLRB Notice Rule on Free Speech Grounds

DC Circuit Invalidates NLRB Notice Rule on Free Speech Grounds

 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 employee rights.

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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