Fourth Circuit joins D.C. Circuit in striking down the NLRB’s embattled Notification of Employee Rights

maria-greco-danaher_1The 4th U.S. Circuit Court of Appeals has affirmed an April 2012 decision of the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12), striking down the National Labor Relations Board’s (NLRB) controversial notice posting rule. The rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. Under the proposed regulation, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, then further postponed until April 30, 2012, and was effectively suspended by the federal court’s April 13, 2012 ruling, which now has been upheld. Chamber of Commerce of the United States v. NLRB, 4th Cir., No. 12-1757, 6/14/13.

Pointing out that the NLRB does not have authority to enforce the Act proactively, the 4th Circuit agreed with the lower 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 [ULP] charges and conducting representation elections upon request.” The Court stressed that “[a]lthough the Board is specifically empowered to ‘prevent’ unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act.” In a thorough and well-reasoned opinion, the Court reviewed the NLRA’s plain language, structure, and legislative history, along with the history of subsequent labor legislation, in holding that the Board was not empowered to promulgate the rule. “Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so.”

The 4th Circuit’s opinion is even more favorable for employers than the recent decision by the D.C. Circuit Court of Appeals,National Association of Manufacturers v. National Labor Relations Board (D.C. Cir. May 7, 2013), which struck down the notice posting rule on the grounds that it violated Section 8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus,” when, in fact, Section 8 allows employer to express their views about unions and unionization, as long as the communications contained no threat or promise.

At this time, it looks as if the notice posting requirement is out of commission for the time being, with two federal appellate courts taking the position that the NLRB is without authority to require posting. However, it remains to be seen whether this phoenix will rise out of the ashes of these opinions and, if so, in what form it will return.

This article was originally printed on Employment Law Matters on June 14, 2013.  Reprinted with permission.

About the Author: Maria Greco Danaher is a shareholder in Ogletree Deakins.  She regularly represents and counsels companies in employment related matters.  She specializes in representing management in labor relations and employment litigation, and in training, counseling, and advising human resource departments and corporate management on these topics.  Maria has first chaired trials in both federal and state courts since 1986, and regularly instructs attorneys and students in issues related to trial tactics.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.