The divergence of opinion between the National Labor Relations Board (NLRB) and the United States Court of Appeals for the District of Columbia Circuit has just widened considerably. Three months after the D.C. Circuit ruled that certain board actions were invalid due to constitutionally invalid appointments by President Barack Obama (Noel Canning v. NLRB), the court, in National Association of Manufacturers v. NLRB, has invalidated a 2012 board rule providing that: 1) any employers subject to the board’s jurisdiction would be liable for an unfair labor practice if they did not post on their properties and on their websites a “Notification of Employee Rights under the National Labor Relations Act;” 2) the failure to post would toll the six-month statute of limitations for filing an unfair labor practice charge; and 3) the board may consider an employer’s knowing and willing refusal to comply with the posting requirement as “evidence of unlawful motive in a case in which motive is an issue.”
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