United States: Fourth Circuit Joins D.C. Circuit In Striking Down NLRB Notice-Posting Rule

Todd D. Steenson is a Partner in our Chicago office.

Last Friday, the U.S. Court of Appeals for the Fourth Circuit became the second federal appeals court to invalidate the August 2011 National Labor Relations Board (NLRB) regulation requiring most employers to post notices of employees' rights under the National Labor Relations Act (NLRA). The court ruled that the NLRA never authorized the NLRB to promulgate such a notice-posting requirement. Chamber of Commerce v. NLRB, No. 12-1757 (4th Cir., June 14, 2013).

As was discussed in a previous Holland & Knight Labor, Employment and Benefits alert, the U.S. Court of Appeals for the D.C. Circuit ruled on May 7, 2013 that the notice-posting rule exceeded the NLRB's authority and is invalid.

What the Fourth Circuit Said

Affirming a lower court decision striking down the notice-posting rule, the Fourth Circuit stated that the NLRA's rulemaking provision "only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request." The NLRA does not grant the NLRB the authority to affirmatively regulate employers who are not the subject of an NLRB charge or a union representation election request, the court held, noting that the NLRB exceeded its authority by adopting a rule that would have required an estimated six million employers to post the notice even though they were not involved in any proceedings before the NLRB.

The Fourth Circuit also rejected the NLRB's argument that the notice-posting requirement was "necessary" for the board's enforcement of the NLRA, stating that if Congress had intended to grant the NLRB such power, "it could have amended the NLRA to do so."

A Dead Letter

As we have discussed before, because employers can always appeal a decision of the NLRB to the D.C. Circuit, that court's earlier decision invalidating the notice-posting rule effectively means it is a dead letter unless and until the Supreme Court rules otherwise or unless Congress gives the NLRB the authority to enact such a rule. The Fourth Circuit's decision is another nail in the coffin for the rule.

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