Another Circuit Court Strikes Down NLRB Posting Rule

On June 14, 2013 the U.S. Court of Appeals for the Fourth Circuit became the second federal appellate court to strike down the notice posting rule promulgated by the National Labor Relations Board in August of 2011. The Fourth Circuit joins the D.C. circuit in holding that the NLRB rule requiring employers to display a poster informing employees of their rights under the National Labor Relations Act is invalid.

As we explained on June 3, 2013, the D.C. Circuit struck down the rule on the basis that it violated the First Amendment rights of employers. The Fourth Circuit has gone even further and held that the Board lacked the authority to promulgate the rule at all.

The court explained that, while the Board does have some rulemaking authority, that authority is limited to “reactive” situations. Specifically, the court stated that “the substantive provisions of the Act make clear that the Board is a reactive entity, and thus do not imply that Congress intended to allow proactive rulemaking of the sort challenged here….” In other words, the Board does not have the authority to act unless a specific unfair labor practice charge alleging a violation of the Act is filed.

As explained on June 3rd, based on the decision of the D.C Circuit (and now the Fourth Circuit) employers are not currently required to post the Notice of Employee Rights. However, it is possible that the Board will appeal these decisions. Employers should remain in contact with legal counsel so as to assure that they are apprised of events as they unfold and remain in compliance with federal law.