On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit declared invalid a National Labor Relations Board (Board) rule that requires employers to display posters that notify employees of their rights to organize and join a union in their place of business.

In 2011, under what has become known as the "Poster Rule," the Board promulgated a requirement that employers post an extensive message regarding workers' rights to unionize. The rule required that employers post a physical sign (11 x 17) and that employers who customarily communicate with their employees electronically also publish the Board's notice on the company's website or intranet. The Poster Rule was immediately challenged by various groups representing employers and manufacturers. The District Court for the D.C. Circuit held that the Board possessed the authority to promulgate this rule, but lacked authority to make a blanket determination that a failure to display the required poster always constituted an unfair labor practice and tolled the statute of limitations for an employee to pursue an unfair labor practice charge. The plaintiffs requested and received an injunction from the D.C. Circuit preventing the Poster Rule from taking effect while their appeal was pursued.

Initially, and guided by the D.C. Circuit's recent decision striking down President Obama's 2012 intrasession recess appointments to the NLRB in the Noel Canning decision, the D.C. Circuit addressed whether or not the Board had a proper quorum to issue the Poster Rule. When the final rule was published in the Federal Register on August 30, 2011, there was not a legal quorum of the Board, with one Senate-confirmed Board member's term having expired. However, the court found there to be a valid quorum when the rule was signed by the Board, and therefore the Poster Rule would not fail on this basis.

The D.C. Circuit found all stated means for enforcing the Poster Rule invalid under Section 8(c) of the National Labor Relations Act (Act), which provides that the expression or dissemination of views cannot constitute an unfair labor practice as long as the expression contains no threat of reprisal or promise of benefit. The D.C. Circuit held the rule's finding of an unfair labor practice where an employer failed to post the Board's proposed poster to be a violation of Section 8(c) of the Act. The D.C. Circuit stated, "Like the freedom of speech guaranteed on the First Amendment, Sec. 8(c) necessarily protects - as against the Board ... the right of employers (and unions) not to speak." The court also found the Board's attempt to enforce the rule by tolling the statute of limitations when an employer failed to post the notice invalid and in violation Section 10(b) of the Act. The D.C. Circuit stated, "Even today courts do not generally recognize lack of knowledge of the law as a basis for equitable tolling."

Finding that the Board lacked authority to enforce the Poster Rule, the court declared the entire rule invalid, finding, "[W]e know that the Board would not have issued a posting rule that depended solely on voluntary compliance."

We anticipate that the Board may appeal this decision to the United States Supreme Court. A second case regarding the Poster Rule, Chamber of Commerce of the U.S. v. NLRB, is pending in the Fourth Circuit on an appeal filed by the Board from a decision of the U.S. District Court for the District of South Carolina that held the Board lacked authority to promulgate the rule.