On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the NLRB’s August 2011 Notice Posting rule was invalid. Given that the Court had previously enjoined the implementation of the rule, such a ruling comes as no surprise. However, the Court did not rule as to whether the Board had authority to promulgate such a rule, which is the normal standard of review in these situations. Rather, the Court struck down the final rule because of the way it was to be enforced. In particular, the Court took exception to the Board’s tolling of the statutory limitations period for an employee to file an unfair labor practice charge if the employer failed to post a notice. Further, it found that a knowing and willful refusal to comply with the requirements of the notice posting might, by itself, be evidence of an unlawful motive in a case in which motive was an issue, even if the case was unrelated to the posting of the notice. Accordingly, as the Court held that these enforcement aspects of the rule could not be severed from the remaining portions of the rule, the rule itself was found invalid.
Unfortunately, given the grounds for which the Court found the rule invalid, the Board will likely take another attempt in drafting such a rule. Note: a rule of a similar nature has been in place with respect to federal contractors for some time and this ruling does not impact those requirements.