On March 2, 2012, a federal district court in Washington, D.C., upheld the statutory authority of the National Labor Relations Board to require all employers covered by the National Labor Relations Act to display a poster informing employees of their rights under the Act. However, the court struck down two of the penalty provisions included in the Board's final rule (published on August 30, 2011). The effective date of the NLRB's rule had been postponed until April 30, 2012 pending the outcome of the litigation.
Rejecting challenges to the rule by various plaintiffs including the National Association of Manufacturers, National Right to Work Legal Defense and Education Fund, Inc., Coalition for a Democratic Workplace, and National Federation of Independent Business, Judge Amy Berman Jackson held that the NLRA includes a "broad, express grant of rulemaking authority" to the NLRB, which reasonably may be read to permit the Board to require employers to post a notice informing employees of their rights under the Act.
The court agreed with the plaintiffs, however, that the provision in the final rule designating any failure to post the notice to be an unfair labor practice under Section 8(a)(1) of the NLRA, and a separate provision requiring the six‐month limitations period under Section 10 of the Act to be tolled whenever an employer failed to post the notice violated the plain language of the statute. While invalidating these aspects of the NLRB's rule on an across‐the‐board basis, the court noted that the Board may be able to prove in an appropriate case that a failure to post the notice constitutes an act of interference with protected Section 7 rights, and thus, violates Section 8(a)(1). The court also noted that its rejection of the provision calling for tolling the statute of limitations for failure to post the notice did not prohibit a charging party from establishing the elements of equitable tolling in a particular case. The court did not strike down that part of the rule allowing an employer's "knowing and willful" failure to post a notice to be considered evidence of unlawful motive.
In a separate decision, the court rejected the plaintiffs' motion to amend their complaint to include a challenge to the recess appointments of three new board members by President Obama in January. The court refused to "take up a political dispute that [was] not before it" and concluded that the issue of the recess appointments was "not essential, or even relevant" to the validity of the Board's notice posting rule, which had been issued at a time when the Board had a quorum of members.
NLRB Chairman Pearce released a statement on March 2, expressing his approval of the court's decision to uphold the Board's authority to issue the notice posting requirement, in which he also indicated that the Board would pursue the path left open by the court, and make case‐by‐case determinations of whether a failure to post the notice constitutes an unfair labor practice.
The National Association of Manufacturers and other trade associations already have asked the U.S. Court of Appeals for the D.C. Circuit to overturn the district court's ruling, and have asked that the posting rule be enjoined while the appeal is pending. And a separate lawsuit challenging the rule remains pending in federal court in South Carolina. However, unless implementation of the Board's rule is again postponed or stayed pending the D.C. appeal, all employers subject to the NLRA must be prepared to display the required poster in their workplaces by April 30.
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