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NLRB notice-posting rule invalid, 4th Circuit says

The 4th Circuit has struck a federal rule that required employers subject to the National Labor Relations Act to post notice informing employees of their rights under the Act. In a unanimous opinion, the Richmond-based federal appeals court upheld summary judgment for the U.S. Chamber of Commerce in a case that has been closely watched by business groups.

Promulgated by the National Labor Relations Board in August 2011, the rule drew some 7,000 submissions, mostly negative, during the public comment period. The NLRB said the rule was necessary to educate workers about their rights, as the overwhelming majority of private sector employees are not represented by unions. Today’s labor force, including immigrants and high school students just entering the labor force, “are uninformed about labor law and labor relations,” the board said.

But the appellate panel, in an opinion by Judge Allyson K. Duncan, said the rulemaking function provided for in the NLRA did not give the board the statutory authority to promulgate the challenged rule.

Duncan said the board is nowhere charged with informing employees of their rights under the NLRA, nor does Section 8 give the board power to require the posting of notices. The panel said in Chamber of  Commerce v. NLRB that it could not accept an interpretation of the NLRA that would allow the NLRB to bootstrap Section 8(a)(1) into authority to enact the “unprecedented rule.”

In May, the D.C. Circuit also struck the rule in a challenge filed by the National Association of Manufacturers, holding the notice-posting rule violates the NLRA’s Section 8(c), which prohibits the NLRB from finding employer speech that is not coercive to be an unfair labor practice or evidence of an unfair labor practice.


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