Judicial Review & Remedies

NLRB Posting Rule Enforcement Provisions Struck Down

The U.S. District Court in D.C. (Judge Jackson) invalidated provisions of the NLRB’s “posting rule” that (1) made an employer’s failure to display NLRB-provided posters to be an unfair labor practice, and (2) would toll the statute of limitations in unfair labor practice actions against employers who have failed to display the posters.  These provisions violated the National Labor Relations Act (NLRA), and, therefore, the Administrative Procedure Act (APA).  The NLRB simply overstepped the bounds of its authorizing statute.

The Case.  The National Association of Manufacturers (NAM), the National Right to Work Legal Defense and Education Foundation (NRTW), and others sued to enjoin implementation of the NRLB’s 2011 rule that would require employers to display an 11” x 17” poster in conspicuous places, informing them of their rights under the NLRA, together with NLRB contact information and information concerning basic enforcement procedures.  The NLRB-generated “official Government Notice” with the NLRB seal could be downloaded from the internet or acquired from the NLRB.

The NLRB promulgated the rule in August 2011 after notice and comment rulemaking proceedings.  Plaintiffs’ motions for a preliminary injunction became moot when the NLRB extended the effective date of the new rule to April, affording Judge Jackson time to reach the merits on summary judgment.

Plaintiff’s Complaint.  Plaintiffs argued that the NLRB’s promulgation of the Final Rule violated the APA because the NLRB lacks the authority: (1) to promulgate and enforce the notice posting rule under the NLRA; (2) to require employers to post a notice absent a proceeding involving the employer under the NLRA; (3) to deem the failure to post to be an unfair labor practice; and (4) to toll the statute of limitations for filing an unfair labor practice charge.  Plaintiffs also argued that the Posting Rule violated the First Amendment by requiring them to speak.

Posting.   The court found that the NLRB did not exceed its statutory authority in promulgating the “notice posting” provisions and the provisions reasonably interpreted provisions of the Act, which authorized the NLRB to interpret the ambiguities and fill in the interstices of the Act.  The NLRB acted, the court reasoned, squarely at the heart of labor-management relations that it was delegated to regulate and did not need to “engage in the tortured reading of the law and mental gymnastics.”

Plaintiffs argued also that the rule was arbitrary and capricious because its justifications were not supported by substantial, or in this case any, empirical evidence.  The court disagreed, noting that the NLRB reasoned:

In justifying the notice-posting provision, the Board reasoned that “many employees are unaware of their NLRA rights and . . . a notice posting requirement is a reasonable means of promoting greater knowledge among employees” so that they can freely exercise their rights.

  • I have serious doubts about the NLRB’s premise and its logic points because the NLRB undercuts some fundamental legal principles:  publication of laws is notice of their effect, binding, and enforceable.  The NLRA is no exception to the principle that Acts of Congress are known to the public; nor are NLRB rules an exception from constructive notice upon publication in the Federal Register.  “Promoting” knowledge may be the rule’s purpose, but a substantive policy reason should not be premised on ignorance of the law.

Failure to Post as a Unfair Labor Practice.  NAM fared better on whether failure to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA.  The Court found that the unfair labor practice provision of the NLRB regulations are expressly limited by the NLRA, in which Congress specifically defined and limited the conduct that could constitute an unfair labor practice, even without delimiting every single practice.  The NLRA prohibits employers from

getting in the way – from doing something that impedes or hampers an employee’s exercise of the rights guaranteed by … the statute.  It does not prohibit a mere failure to facilitate the exercise of those rights.

Moreover, the court found that

Congress prohibited the Board from considering an employer’s express statement of its views to be an unfair labor practice, it follows that it did not intend that an employer’s mere failure to supply information would be designated as one.

Equitable Tolling for Failure to Post.  NAM also fared well when the court struck down a provision that

the Board may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct if the employer has failed to post the required employee notice unless the employee has received actual or constructive notice that the conduct complained of is unlawful.

The court concluded that no gap existed in the NLRA’s statute of limitations for the NLRB to fill.  Accordingly, the rule was outside the NLRB’s authority.

  • I find it odd that the NLRB would except “constructive” notice from its ability to equitably toll, because that is precisely the means by which the public is presumed to know the laws enacted by Congress and the rules promulgated by the NLRB.  The NLRB seems to suffer a logic failure by creating what might be a null set.

First Amendment.  Finally, the court turned to plaintiffs’ constitutional argument that the posting rule violated their First Amendment right not to speak.  The court had little difficulty disposing of the issue because the poster clearly was exemplified the NLRB speaking, not the employer, in no greater way than any other government mandated notice.

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