NLRB Posting Rule Held Invalid by Fourth Circuit

Another Appeals Court Strikes Down NLRB Notice Posting Rule

By Stephen R. McCutcheon, Jr.
The National Labor Relations Board’s controversial rule requiring employers to post a notice of employee rights under the National Labor Relations Act was held to be illegal by a second appellate court on June 14, 2013.  Previously, the influential Circuit Court of Appeals for the D.C. Circuit found the notice posting rule to be in excess of the NLRB’s statutory powers.  Now the Fourth Circuit Court of Appeals, which covers Maryland, North and South Carolina, Virginia, and West Virginia, has issued a similar ruling striking down the notice posting rule.
The National Labor Relations Act governs relations between private sector employers, labor unions, and employees, and protects the rights of employees to choose whether or not to be represented by a union.  The core functions of the NLRB under the Act are to conduct representation elections, and to resolve unfair labor practice claims – both of which are predicated upon the filing of charges or petitions by employees, unions, employers, or other persons.  In striking down the notice posting rule, the Fourth Circuit Court of Appeals held that the Act only empowers the NLRB to carry out its statutorily defined “reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.”  The Court reiterated that the NLRB has no general investigatory powers, and that all of its functions and responsibilities are predicated upon responding to the filing of an unfair labor practice charge or representation petition.
The NLRB’s adoption of the notice posting rule constituted a departure from its statutorily-created reactive nature, and stood in stark contrast with other government agencies such as the EEOC and OSHA which are expressly granted the authority to require the posting of notices in the workplace and initiate investigations without the filing of a complaint.  Absent an amendment to the NLRA by Congress, the NLRB will be limited to responding to petitions and complaints, and cannot use its rulemaking power to expand the scope of its authority.
The case is Chamber of Commerce of the United States and South Carolina Chamber of Commerce v. National Labor Relations Board, 4th Circuit U.S. Court of Appeals, No. 12-1757.
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