Fourth Circuit Strikes Down NLRB Notice Posting Rule

Friday, June 21, 2013

The National Labor Relations Board (the “NLRB”), after notice and comment, promulgated a rule that would require employers subject to the National Labor Relations Act (the “NLRA”), 29 U.S.C. §§ 151-169, to post an official Board notice informing employees of their rights under the Act. Any employer failing to post the notice would be subject to: (1) a finding that it committed an unfair labor practice; (2) a tolling of statutes of limitation for charges of any other unfair labor practices; and (3) a finding of anti- union animus that would weigh against it in any proceedings before the Board.

The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce (collectively, “the Chamber”) sought final review of the rule. The district court determined that in promulgating the notice-posting rule, the Board exceeded its authority, in violation of the Administrative Procedure Act (the “APA”). Looking to the plain language of the NLRA, its structure, its legislative history, and the notice provisions in other statutes, the court concluded that the Act does not provide the Board with the power to enact such a rule. The court granted summary judgment to the Chamber.

In Chamber of Commerce of the United State v. NLRB, No. 12-1757 (2013), the Fourth Circuit Court of Appeals upheld the District Court's decision.  This is the second circuit court (the D.C. Circuit Court had already struck down the posting rule) to find that the NLRB exceeded its powers in promulgating this rule.  

The Fourth Circuit determined that "the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request."

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