On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit struck down the National Labor Relations Board’s rule requiring employers to post a notice created by the NLRB that purported to “inform” employees about their rights under the National Labor Relations Act (“Act”). The rule contained three enforcement provisions, making non-compliance: (1) an independent unfair labor practice; (2) evidence of union animus that could support other unfair labor practice findings (such as an unlawful discharge); and (3) toll the six-month statute of limitations established by the Act.
The court found that all three of these enforcement provisions violated the law. The first two enforcement provisions violated Section 8(c) of the Act, which prevents the NLRB from finding an employer’s speech that does not contain threats or promises of benefits unlawful or evidence of an unfair labor practice. The court said the NLRB’s rule punished employers for refusing to speak, which violated Section 8(c). According to the court, the third enforcement provision impermissibly changed the Act’s statute of limitations, which the NLRB lacked the power to do.
Because all three enforcement provisions violated the law, the court also struck down the rule’s requirement that employers post the notice. Based on the preamble to the NLRB’s final rule, the court stated that the NLRB “would not have issued a posting rule that depended solely on voluntary compliance.”
In a concurring opinion, two of the three judges would also have found that the rule exceeded the NLRB’s statutory authority to make rules under Section 6 of the Act.
Because employers can always appeal unfair labor practice cases to the D.C. Circuit Court of Appeals, this court decision is particularly important. The NLRB’s options in response to this latest legal setback include: (1) seeking to have the D.C. Circuit rehear this case; (2) appealing to the United States Supreme Court; (3) trying to have other federal appeals courts uphold the rule; or (4) creating a new rule. Another case challenging this rule is currently pending before the United States Court of Appeals for the Fourth Circuit; the lower court in that case struck down the rule.