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Media Alerts - National Association of Manufacturers v. NLRB
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May 7, 2013
  National Association of Manufacturers v. NLRB
Headline: D.C. Circuit strikes NLRB rule requiring nearly six million employers to post a conspicuous "Notification of Employee Rights under the National Labor Relations Act" at their workplace on First Amendment and statutory grounds.

Area of Law: Labor, First Amendment

Issue(s) Presented: Whether the NLRB's 2011 rule requiring that all employers subject to the National Labor Relations Act (NLRA) post conspicuous notices to employees of their rights under the NLRA exceeds the Board's statutory authority and violates the First Amendment.

Brief Summary: In August 2011, the NLRB promulgated a rule requiring that employers subject to its jurisdiction post a prominent notification for employees of their rights under the NLRA. The rule provided that failure to post the required notice would give rise to charges of unfair labor practices; would toll the § 10(b) limitations period for employee actions; and would constitute evidence of improper anti-union motive. Trade associations filed a complaint in the United States District Court for the District of Columbia claiming that the rule violated the NLRA and the First Amendment. On cross-motions for summary judgment, the district court found statutory authority for the rule under § 6 of the Act but held that, under § 8(a)(1) and § 8(c), the Board had no authority to make a blanket advance determination that failure to post would invariably be an unfair labor practice. The court also invalidated a section of the rule tolling the limitations period if the employer failed to post the notice. The district court upheld the provision allowing an employer's failure to post to be considered evidence of improper motive because it did not make a blanket finding that would govern individual cases. On appeal, the D.C. Circuit struck the rule in its entirety.

As a threshold matter, the court found that the recess appointment of one of the board members at the time of publication of the rule in the Federal Register did not invalidate the regulation under Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). The court determined that the date of filing with the Office of the Federal Register - at which point the Board had a valid quorum - not the date of eventual publication, is the operative date for determining whether the Board had a valid quorum.

On the merits, the court found that the provisions of the rule charging employers with unfair labor practices for failure to post the required notice or making such failure evidence of anti-union animus violated § 8(c) of the NLRA, which states that the expression or dissemination of views "shall not constitute or be evidence of an unfair labor practice" in the absence of threats or coercion. The court rejected the Board's argument that the posts represented the Board's speech, rather than the speech of employers. Citing Supreme Court precedent on compelled speech, the court next found that compelled dissemination of a particular message violates the First Amendment, and by implication § 8(c), as much as a regulation that forbids speech.

Turning to the provision of the rule that tolled the § 10(b) limitations period for unfair labor practice charges in the event that employers failed to post the required notification, the court determined that equitable tolling principles on which the Board purported to rely could only be used to contravene clear statutory language if the particular rationale for tolling existed at the time Congress enacted the statute. The court rejected the Board's argument that tolling for failure to disclose is akin to tolling due to "fraudulent concealment," calling it "bad wine of a recent vintage." Finding no reason to assume that the 1947 Congress enacting § 10(b) intended this kind of equitable tolling modification, the court invalidated the rule.

Because the court concluded that all three means of enforcing the posting requirement were invalid, it did not address the trade associations' contention that the Board lacked the authority to issue the posting requirement itself. The court determined that this requirement was clearly not severable because the Board would not have issued a rule that depended on voluntary compliance.

Judges Henderson and Brown wrote a separate concurring statement indicating that the rule also exceeded the Board's authority under § 6 of the NLRA because it was not "necessary" to carry out any express provisions of the Act.

For the full text of the opinion, please see

Extended Summary (if applicable):

Panel (if known): Henderson, Brown, Randolph

Argument Date (if known): 09/11/2012

Date of Issued Opinion: 05/07/013

Docket Number: 12-5068

Decided: Affirmed in part and reversed in part

Case Alert Author: Elizabeth Beske

Counsel (if known): Maurice Baskin, Peter N. Kirsanow, Bryan Schwartz, Maynard Buck, Patrick O. Peters, Glenn M. Taubman, William L. Messenger, John N. Raudabaugh, and H. Christopher Bartolomucci for Appellants.

Dawn L. Goldstein, John H. Ferguson, Margery E. Lieber, Eric G. Moskowitz, Abby Propis Simms, and Kevin P. Flanagan for Appellees.

Author of Opinion: Randolph; Concurrence by Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 05/07/2013 03:19 PM     DC Circuit  

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