More On

Labor: Federal court partially invalidates NLRB posting requirement

While the ruling weakens its hold, employees are still required to post the notice

In a March 2 ruling, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia partially overturned a National Labor Relations Board (NLRB) regulation requiring employers to post notices of employee rights under the National Labor Relations Act (NLRA). The decision upholds the right of the NLRB to promulgate a rule requiring such posting by employers. With respect to enforcement, however, the court invalidated two provisions of the rule, which:

  1. Deem a failure to post to be an unfair labor practice
  2. Toll the statute of limitations in unfair labor practice actions against employers who have failed to post

The NLRB rule, “Notification of Employee Rights under the National Labor Relations Act,” contains three Subparts:

The second invalidated provision—Section 104.214(a)—reads, in relevant part: “When an employee files an unfair labor practice charge, 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.”

In invalidating this provision, the court found that it was designed to apply to all unfair labor practice actions against an employer that failed to post, not just those arising out of the failure to post. In discussing situations in which statutes of limitation are sometimes flexibly applied, the court noted that the rule “strips away the case-specific nature of the equitable tolling doctrine by imposing it as the rule rather than the exception.” The court concluded that the NLRA does not provide authority to the NLRB to enact such a blanket rule.

Contributing Author

author image

John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.