• NLRB Poster Rule Struck Down
  • May 16, 2013 | Author: Donald D. Berner
  • Law Firm: Foulston Siefkin LLP - Wichita Office
  • In a decision yesterday out of the Court of Appeals for the D.C. Circuit, the NLRB's notice posting requirement was struck down as invalid. For those of you that have been following along since the start, the NLRB issued the poster rule in August of 2011 and then repeatedly delayed enforcement of the rule as litigation popped up in several federal district courts as to the validity of the rule. The rule, in its simplest form, required employers to post a notice containing information about the ability of employees to seek union representation.

    In its decision, the Court held that the rule violated an employer's right to free speech. The Court also addressed a provision in the rule related to the tolling of the statute of limitations for filing a charge based on a violation of the poster rule. This provision was also struck down as invalid. For those that like reading court decisions, this particular portion is a bit convoluted, but interesting for reasons beyond the NLRB poster. The tolling arguments touched on some Title VII and ADEA posting issues and tolling principles used by the EEOC. The Court did not specifically rule on the tolling issues beyond the NLRB poster; however, it did highlight and call into question the validity of tolling in that context as well.

    For now the poster rule looks to be on its death bed, but one never knows what appeal may arise or what another Court of Appeals might have to say about the issue. There is another NLRB poster rule case pending in the 4th Circuit Court of Appeals and that court could decide the matter differently. Stay tuned. For now, employer groups seem to have this game firmly in hand.