The U.S. Circuit Court of Appeals for the Fourth Circuit rejected a National Labor Relations Board (NLRB) rule requiring most companies to post a notice informing employees of their union rights. The court held that the posting requirement is unenforceable. This is the second federal appellate
court to invalidate the requirement in the past two months.
The controversial poster rule required most private-sector
employers to put up an NLRB-created
workplace poster entitled, “Employee Rights Under the National Labor Relations
Act.” The poster generally informs employees of their rights to organize a
union, bargain collectively through representatives chosen by the employees and
make efforts to improve the terms and conditions of their employment.
The posting requirement was initially scheduled for
implementation in November of 2011. That deadline was first delayed until April
30, 2012, and then put on hold indefinitely pending the outcome of legal
This challenge was brought by the U.S. Chamber of Commerce
and the local South Carolina Chamber of Commerce. The Fourth Circuit’s decision
directly questions the NLRB’s rulemaking authority.
The case is Chamber of Commerce v. National
Labor Relations Board, 12-01757, U.S. Court of Appeals for the
No Power to Require a
The Fourth Circuit ruled that there was nothing in the National
Labor Relations Act (NLRA) that gave the NLRB power to require the posting of
notices. Although Congress gave other agencies, such as the Department of
Labor, the explicit power to require notices, it never granted the NLRB power
to do so.
“Had Congress intended to grant the NLRB the power to
require the posting of employee rights notices, it could have amended the NLRA
to do so,” U.S. Circuit Judge Allyson Duncan wrote for the Fourth Circuit.
No “Carte Blanche”
The Fourth Circuit also ruled that the NLRB’s powers are
limited to reacting to unfair labor practices and conducting representation
elections upon request — the NLRB does not have proactive rulemaking powers.
“We agree with the district court 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,”
the Fourth Circuit said. “Indeed, there is no function or responsibility of the
board not predicated upon the filing of an unfair labor practice charge or a
The U.S. Chamber of Commerce’s Chief Counsel for Regulatory Litigation,
Rachel Brand, told Thomson Reuters that the U.S. Chamber was pleased with the
result and the court’s reasoning.
“The board has a reactive authority, not a carte blanche regulatory authority,”
D.C. Circuit Rejected
Poster on Free Speech Grounds
Last month, the
D.C. Circuit also struck down the poster rule. The D.C. Circuit reasoned
that the rule violated free speech rights. Judge Raymond Randolph noted that
federal law protects “the rights of employers (and unions) not to speak” and
that the poster rule was “compelled speech.”
The D.C. Circuit did not reach the issue of the NLRB’s
The NLRB has statutory jurisdiction over private sector
employers whose activity in interstate commerce exceeds a minimal level.
Whaley, CalChamber Employment Law Counsel/Content