In a highly anticipated decision, the U.S. District Court for the District of Columbia issued an opinion ruling on the validity of the National Labor Relations Board’s controversial requirement that employers under its jurisdiction post in the workplace a notice of employee rights under the National Labor Relations Act. Though the court generally upheld the posting requirement, the judge ruled that the NLRB went too far when it declared that employers automatically commit an unfair labor practice by failing to post the notice.

The Rule, announced in August 2011, would not only require that employers post the notice in the workplace, but also provides that failure to do so is an unfair labor practice that tolls the statute of limitations for any other unfair practices in that workplace. In December, the NLRB postponed the Rule’s enforcement until April 30, 2012, in light of the pending lawsuits before the D.C. District Court.

The court’s decision analyzed first whether the NLRB had the authority to require the notice posting itself, finding that it does and stating, “the Court cannot conclude that in enacting the NLRA, Congress unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the [NLRA].” The court also found that the NLRB’s explanation of why the notice requirement is necessary was reasonable, and that the new requirement was not “arbitrary and capricious.”

The court went on to analyze whether failure to post the notice could constitute an automatic unfair labor practice and whether it could automatically toll the statute of limitations for other unfair practice charges, the requirements laid out in Sections 104.210 and 104.214(a) of the new Rule. In rejecting the per se rule that failure to post is an unfair labor practice, the court found that the language of the NLRA “prohibits employers from getting in the way—from doing something that impedes or hampers an employee’s exercise of the rights guaranteed by [the Act],” not a “mere failure to facilitate the exercise of those rights.”

Despite this, the court noted that “nothing in [its] decision prevents the [NLRB] from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it,” but that any such finding must be based on the facts and circumstances of each specific case. Similarly, the court found that the NLRB’s requirement that the statute of limitations for all unfair labor practices in a workplace be tolled where the rights notice is not posted went beyond the NLRB’s statutory authority, but provided that tolling could be found where justified in individual cases.

Finally, the court rejected the claim that the notice posting requirement violated employers’ First Amendment rights.

Although the court’s ruling rejected the most controversial of the new Rule’s requirements—that failure to post is an automatic unfair practice and stays the statute of limitations for any unfair practice charges—it leaves open the NLRB’s ability to find both in individual cases. Accordingly, the new Rule could still have significant consequences for employers who fail to post the notice.

A separate lawsuit filed by the U.S. and South Carolina Chambers of Commerce, alleging the rule violates the Administrative Procedures Act, Regulatory Flexibility Act, and the First Amendment, remains pending in the United States District Court for the District of South Carolina.


Copyright © 2012 by Ballard Spahr LLP.
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