NLRB Posting Rule Upheld in Part, Stricken in Part

March 5, 2012

The uncertainty regarding the new NLRB rule that an employer must post a notice informing employees of their rights under the National Labor Relations Act has been somewhat resolved by a lower court decision upholding the basic posting requirement but striking the rule's unfair labor practice and equitable tolling provisions as unenforceable. The Court's March 2 decision allows a portion of the rule to take effect on April 30, 2012 but leaves open important questions as to the rule's enforcement. (Nat'l Ass'n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629, 3/2/12). In upholding the NLRB rule's core posting requirement, the Court found that promulgation of this portion of the rule was not arbitrary and capricious. Regarding the unfair labor practice provision, however, the Court held that the NLRB lacked authority to treat a failure to post as an unfair labor practice in all cases. On the other hand, the Court agreed that the Board could find that a failure to post amounts to an unfair labor practice in a specific case, but this requires a factual finding that the failure to post interfered with an employee's exercise of rights under the Act. Similarly, the Court held that the rule's equitable tolling provision, which would have extended the six-month limitations period, exceeded the NLRB's statutory authority but that equitable tolling may be applied on a case by case basis. Employers should prepare to post the NLRB notice of employee rights (which can be downloaded at by April 30, 2012. While the court's ruling holds that the rule’s uniform enforcement provisions are unenforceable, still even this court agreed that a failure to post the notice can form the basis for an unfair labor practice charge or equitable tolling of the limitations period in certain cases and we expect the Board to seek these remedies. We also expect to see appeals from the court’s ruling. If you have any questions about the posting requirement, contact Patrick McGovern, Esq. or John Vreeland, Esq. in our Labor Law Practice Group.