On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit vacated a rule issued by the National Labor Relations Board (the "Board") that would have required millions of employers -- both union and non-union -- to post in the workplace a notice of employees' rights under the National Labor Relations Act (the "Act").  Nat'l Ass'n of Mfrs. v. NLRB, 2013 U.S. App. LEXIS 9231 (D.C. Cir. 2013).

Among other things, the notice would have advised employees of their right to join a union, to bargain collectively, to strike and picket, and to discuss wages and benefits with co-workers.  The rule also contained three enforcement mechanisms: 1) an employer's failure to post the notice would violate Section 8(a)(1) of the Act; 2) a refusal to post the notice could be considered as evidence of an unlawful motive in other unfair labor practice cases; and 3) the Board could toll the six-month limitations period for filing an unfair labor practice charge unless the employee received notice that the conduct complained of is unlawful.

After the Board issued the rule, trade associations and other organizations representing employers challenged the rule in the District Court for the District of Columbia.  The district court upheld the Board's authority to issue the rule, although it invalidated two of the three enforcement mechanisms.  Nat'l Ass'n of Mfrs. v. NLRB, 846 F.Supp.2d 34 (D.D.C. 2012).

On appeal, the D.C. Circuit invalidated the rule, finding all three of its enforcement provisions unenforceable.  The Court found that the rule violated Section 8(c) of the Act, which protects noncoercive employer speech.  The D.C. Circuit ruled that Section 8(c) also protects the right of employers not to speak and, correspondingly, the right to refuse to disseminate speech created by others.  The Board's rule thus violated Section 8(c) because it made an employer's failure to post the notice an unfair labor practice and treated the failure to post as evidence of anti-union animus in unfair labor practice cases.

Separately, the Court held that the Board could not toll the statute of limitations to bring an unfair labor practice charge.  Under Supreme Court precedent, the key to determining whether tolling was appropriate was whether the exception was recognized when Congress enacted the statute.  The Court found that the Board had made no effort to demonstrate that the type of tolling contemplated by the Board was recognized when Congress enacted Section 10(b) of the Act in 1947.

The Court did not reach the issue of whether the Board had regulatory authority to issue the notice and declined to do so because the Board previously had stated that it would not have issued the rule without enforcement methods.  Two judges, however, stated in a concurring opinion that they would have gone further and ruled that the Board lacked the authority under the Act to promulgate the rule.

A separate challenge to the posting rule is currently pending in the United States Court of Appeals for the Fourth Circuit.  A future ruling by that court in conflict with the D.C. Circuit's decision would likely require the U.S. Supreme Court to resolve the question of the Board's authority to issue the rule.  We will keep you apprised of further developments in this area.