The U.S. Court of Appeals for the Fourth Circuit has just ruled that the NLRB exceeded its authority by issuing the NLRB Notice Posting rule. The Court upheld the District Court decision to grant summary judgment to the U.S. Chamber of Commerce in the lower court proceeding. This is the second circuit court to strike down the posting rule. See our article: D.C. Circuit Court of Appeals Strikes Down NLRB Posting Rule

You may recall that, in 2011, the NLRB promulgated a rule requiring employers subject to the National Labor Relations Act (the NLRA) to post an official Board notice informing employees of their rights under the NLRA. Employers that failed 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 NLRB exceeded its authority, in violation of the Administrative Procedure Act (the “APA”).

The NLRB appealed that ruling to the Fourth Circuit, and the Fourth Circuit affirmed the District Court’s decision. The Circuit Court held:

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. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule, and affirm.

Jackson Lewis is analyzing the decision and will prepare a more extensive analysis shortly.