On March 2, 2012, United States District Court Judge Amy Jackson, in a comprehensive written opinion, held that the National Labor Relations Board (“NLRB” or “Board”) lawfully promulgated a requirement that employers post a National Labor Relations Act (“NLRA”) Employee Rights Poster. The rule is applicable to all private-sector employers subject to the jurisdiction of the NLRA. Presently, the NLRB requires an employer to post its Employee Rights Poster on or before April 30, 2012. A copy of that Poster can be downloaded from the NLRB homepage. See Notice, http://NLRB.gov/poster. Judge Jackson, however, further found that the Board exceeded its authority when, in the same regulation, it: (1) deemed a failure to post a per se unfair labor practice, and (2) tolled the statute of limitations in any case where the employer failed to post. As of yet, neither the plaintiff employer associations nor the NLRB has filed an appeal. The case is National Manufacturers Association (“NAM”) et al. v. NLRB, ___ F.Supp.2d ___, Civil Action No. 11-1629 (USDC DC, March 2, 2012).

By way of background, upon publication of the Final Rule, the NAM and other employer associations filed suit in the United States District Court for the District of Columbia. The employer associations alleged that the NLRA Employee Rights Poster rule exceeded the NLRB’s authority under the NLRA, the Administrative Procedures Act (“APA”), and the First Amendment.

The Poster itself has the NLRB seal prominently displayed on the top left corner, and the phrase, “This is an official Government Notice . . .” printed in bold typeface along the bottom margin. The Poster begins with the following text:

“Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more coworkers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.”

The text next breaks into two columns. The left column is a list of items that begins, “It is illegal for your employer to . . . ,” and the right column states, “It is illegal for a union or for the union that represents you in bargaining with your employer . . .” The text merges back into a single column with NLRB contact information. The Poster concludes: “If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity.”

The NAM also challenged those sections of the Employee Rights Poster regulation that state: (1) the NLRB will enforce its posting requirement by finding failure to post a violation of the NLRA, and (2) the Board may also enforce a “failure to post” by tolling the statute of limitations or finding the failure to post, evidence of a “knowing and willful” violation of the Act.

While the case was pending, the parties filed cross-motions for summary judgment accompanied by extensive briefs. On March 2, 2012, Judge Jackson held, as to the legality of the posting requirement:

1. The NLRB had the authority under the NLRA to promulgate a rule requiring an NLRA Employee Rights Poster;
2. The Poster Rule did not violate other sections of the NLRA;
3. Congress’s failure to expressly authorize a posting requirement or the Board’s 75-year failure to require such a posting, was unpersuasive;
4. The Poster Rule was consistent with the NLRA and a rational exercise of the NLRB’s power under the NLRA and the APA; and,
5. The Poster Rule did not violate the First Amendment because it does not compel employers to state anything; it merely requires posting a lawful and government document

As to those sections of the rule impacting unfair labor practices, Judge Jackson was less sympathetic. Judge Jackson found:

1. The failure to post is not an explicit requirement of the NLRA;
2. Equating a failure to post with a per se unfair labor practice infringes upon free speech rights of an employer protected by both the NLRA and the First Amendment;
3. If the Board believes a failure to post is an unfair labor practice, it must make specific findings of fact in each case, not by rule; and,
4. As to equitable tolling of the statue of limitations, the Judge held that the concept of equitable tolling is an exception to a rule, and the NLRB should not make it a rule. Upholding such a regulation would substantially amend the NLRA’s statute of limitations.

In sum, the Court found that the Board lawfully promulgated the NLRA Employee Rights Poster rule, but exceeded its authority by deeming that a failure to post is an unfair labor practice and, per se, a tolling of the statue of limitations. Unless an appeal is filed, and a stay of decision entered, April 30, 2012 is the Posting Date. In advance of the Posting Date, employers should familiarize themselves with the information on the NLRA Employee Rights Poster and decide how they will respond to employee queries about information on the Poster. Employers who choose not to post should weigh the impact of their decision on prospective unfair labor practice cases.