Legal Briefing: NLRB Posting Rule and Employer Speech Rights

The National Labor Relations Board promulgated a rule that had required employers to post notices of worker rights to engage in union activities.

As the rule was to come into effect in early 2012, several business groups challenged the rule in the U.S. District Court of Columbia in Washington, D.C., objecting to the rule’s promulgation on a variety of grounds including that the NLRB did not have the statutory authority to make such a rule.

The U.S. District Court decided that the NLRB had the statutory authority. However, the penalty provision of the rule, which would toll the National Labor Relations Act’s statute of limitations automatically if any employer had not complied with the rule by failing to post notices of worker rights, did exceed the NLRB’s statutory authority. On appeal, the Washington circuit court ruled that the NLRB’s requirement of employers to post notice of worker rights violated employer free-speech rights. The court also found that there was no evidence to show that Congress ever intended to grant the NLRB the power to coerce action by modifying the statute of limitations period. National Association of Manufacturers v. NLRB, D.C. Cir., No. 12-5068, (May 7, 2013).

IMPACT: The NLRB’s rule compelling employers to post notices of worker rights oversteps the NLRB’s rule-making authority.