By: Amanda A. Sonneborn, Esq.
The NLRB recently requested that the Fourth Circuit Court of Appeals reconsider its decision holding that the NLRB could not require employers to post a notice regarding employees’ rights under the National Labor Relations Act. The Fourth Circuit previously found that the NLRB lacked the authority to issue the poster requirement. In its request for rehearing, the NLRB argued that the Fourth Circuit impermissibly disregarded Supreme Court precedent regarding deferral to the federal agency’s authority to issue rules like the poster requirement. Unlike the D.C. Circuit Court of Appeals, which also examined the question of whether the NLRB’s poster requirement was lawful, the Fourth Circuit specifically held that the National Labor Relations Act did not authorize the NLRB to issue proactive requirements, like the poster rule, but instead, the Act “only empowers the board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.”
In its request for rehearing, the NLRB challenged this conclusion, arguing that the Fourth Circuit’s decision impermissibly ignored the NLRB’s authority to issue its own rules, citing to Section 6 of the Act, which allows the NLRB to write rules and regulations “as may be necessary to carry out the provisions of this act.” Yet, the Court of Appeals was not persuaded by the NLRB’s argument. In fact, the Court rejected the NLRB’s request for a rehearing without even issuing a written decision explaining the rejection.
Thus, for now, the NLRB’s poster requirement continues to be unenforceable. The NLRB’s additional recourse on this issue is to pursue the case to the U.S. Supreme Court. Stay tuned and we will let you know if that request is filed.