A federal appeals court today rebuffed the NLRB’s attempt to require all employers under its jurisdiction to post in a “conspicuous” place in the workplace a poster that informs employees of their rights under the National Labor Relations Act.   The NLRB’s rule has been controversial from the start as it didn’t just require the posting of a notice of “employee rights.”  Rather, it included some items that would additionally expand the NLRB’s reach over employers in three unpleasant ways.  First, the rule made the failure to post the notice an unfair labor practice.  Second, it stated that failure to post the notice could be evidence of “anti-union-animus.”  Third, the rule stated that failure to post may toll the Act’s six-month statute of limitations as to other unrelated activities.

When the rule was promulgated (over a din of complaints), it was immediately challenged in South Carolina and in the District of Columbia.  As we previously reported, here and here, both Federal District Courts invalidated the rule.  In light of the serious questions about the rule the DC Circuit granted an injunction staying the rule pending the appeal.  The South Carolina case is still pending before the Fourth Circuit.

The DC Circuit’s opinion in National Association of Manufacturers et. al. v. NLRB (DC Cir. May 7, 2013), vacates the rule, finding it violates various provisions of the National Labor Relations Act.  In the prior case, the District Court rejected the free speech argument made by the challengers.  The Court of Appeals, however, rested much of its decision on employer free speech rights, ruling that two of the three enforcement mechanisms (failure to post is itself an unfair labor practice and failure to post may be evidence of unlawful motive) clearly violated the often ignored free speech provision of the Act.  The Court also ruled that the NLRB cannot simply toll the six month statute of limitations by regulation.  This, of course, is an important case because it directly addresses issues that have been raised since the rule was promulgated, and gives a clear analysis of the existing law which undoubtedly will be used in other cases.

Board Had A Quorum To Promulgate The Rule

The DC Circuit addressed an issue not raised by either party but significant nonetheless as it gives some insight into the depth of the recess appointment issue.  At the time the rights poster rule was issued, three of the four members of the then existing NLRB (Chairman Liebman and Members Pearce and Hayes) were confirmed by the Senate.  The fourth member, Craig Becker, had received a recess appointment.  The Court stated, “To the extent that Noel Canning applies — we assume, without deciding, that it does–Becker’s appointment was constitutionally invalid.”  The Court ruled that the promulgation occurred as of the date Chairman Liebman signed the final rule on August 22, 2011, shortly before her term expired, meaning the Board had a quorum of three members.  The reference does foreshadow a potential future problem for the NLRB:  decisions handed down after Chairman Liebman left in August 2011 means the Board actions may be invalid due to a lack of quorum during an extended period.

The Poster Violates Employer Free Speech

The Court noted that the proper starting place is Section 8(c) of the Act, “which seems to us to control much of the case.”  Section 8(c) provides the employer’s right of free speech in matters concerning unions, and is very clear:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The Court held that, “[a]lthough § 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.”

The Court explained that by requiring employers to post or be found guilty of an unfair labor practice, the rule violated the employer’s right to not make certain speech:

Of course, we are not faced with a regulation forbidding employers from disseminating information someone else has created.  Instead, the Board’s rule requires employers to disseminate such information, upon pain of being held to have committed an unfair labor practice.  But that difference hardly ends the matter.  The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.

In other words, the NLRB’s attempt to compel employers to give only one side of the debate over unionization violates its Section 8(c) right to choose what to disseminate to its own employees.  The Court explained further:

We return then to the question with which we began.  Suppose that § 8(c) prevents the Board from charging an employer with an unfair labor practice for posting a notice advising employees of their right not to join a union.  Of course § 8(c) clearly does this.  How then can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)?  Like the freedom of speech guaranteed in the First Amendment § 8(c) necessarily protects–as against the Board—the right of employers (and unions) not to speak.  This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union.

The Court then held that the poster rule violates Section 8(c) because it not only makes failure to post an unfair labor practice, it also treats such failure as “evidence of anti-union animus.”  NLRB case law is rife with findings of “anti-union animus” based on mere opposition to a union, and surely this decision will be cited in future cases as authority that the agency may not merely classify lawful speech as evidence of an unfair labor practice.

NLRB May Not Toll Statute of Limitations By A Failure To Post

The Court then addressed the portion of the NLRB’s rule that says the statute of limitations under the Act can be tolled by a failure to post.  The Court found this provision violated Section 10(b) of the Act, which states:

no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and with a service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge.

The Court noted that under the doctrine of “equitable tolling,” which was the basis relied upon by the Board in making its rule, it must be rooted in congressional intent.  Section 10(b) was added in 1947, while much of the “equitable tolling” cases occurred in unrelated statutes passed decades after the NLRA.  The Court scolded the Board for its attempt to expand the statute of limitations:

The short of the matter is that the Board has not invoked any authority suggesting that the 1947 Congress intended to allow § 10(b) to be modified in the manner of the Board’s tolling rule.  Whether one frames the Board’s tolling rule as resting on the employer’s failure to post the Board’s notice or on the charging employee’s lack of knowledge of his rights under the National Labor Relations Act, the Board marshaled nothing to show that by 1947 this was a generally accepted basis for tolling limitations periods.

The three judge panel vacated the rule in its entirety.  Two of the three judges would have gone farther, questioning whether the NLRB had a right to promulgate any rule requiring a notice posting.

What now?  For the time being the rule remains invalid.  There is some chance this will be appealed, but the Board may wait to see what happens with the Fourth Circuit case.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.