By: Howard M. Wexler, Esq.

On Friday, June 14, 2013, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s ruling (discussed here) that the National Labor Relations Board overstepped its authority by issuing a rule requiring private sector employers–union and non-union alike–to post notices in the workplace informing employees of their rights under federal labor law. The Fourth Circuit’s decision in Chamber of Commerce v. NLRB, 12-1757 (4th Cir., June 14, 2013), is the second appellate court decision striking down this posting requirement of the NLRB, joining the U.S. Court of Appeals for the D.C. Circuit (discussed here) that reached the same decision last month. These decisions mark a very strong blow to the NLRB’s agenda. The posting requirement was one of the key agenda items of the Obama Board.  

The Board introduced this posting requirement in August 2011. From its inception, this posting requirement has been controversial, drawing over 7,000 submissions, mostly negative, during the public comment period. Unlike the EEOC, OSHA, and the DOL, which have specific statutory authority to require employers to post notices, the NLRB does not. In support of its posting requirement, the Board said the rule was necessary to educate workers about their rights, as today’s labor force is “uninformed about labor law and labor relations.”

Similar to the D.C. Circuit’s reasoning, the Fourth Circuit ruled against the NLRB, “[b]ecause the Board is nowhere charged with informing employees of their rights under the NLRA” and there being “no indication in the plain language of the Act that Congress intended to grant the Board authority to promulgate such a rule.”

Notably, the Fourth Circuit went slightly further in its ruling than the D.C. Circuit. Rather than simply holding that the NLRB overstepped its rulemaking authority, the Fourth Circuit held that,  “there is no general grant of power to the NLRB outside the roles of addressing ULP [unfair labor practice] charges and conducting representation elections….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.” This language will almost certainly come in handy in future efforts by employers to challenge the NLRB’s aggressive use of its rulemaking power as it relates to anything outside of “the filing of an unfair labor practice charge or a representation petition.”