U.S. District Court for the District of South Carolina

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Fourth Circuit overturns NLRB Poster Rule

June 14, 2013

The Fourth Circuit Court of Appeals upheld the decision of the district court and held that the NLRB does not have authority under the NLRA to promulgate the posting requirement. Below are some excerpts from the court's decision:

  • “We agree with the district 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 charges and conducting representation elections upon request. 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.” Slip. Op. at 5 (emphasis added).
  • “Here, . . . there is simply no authority to be limited: as we emphasize again, 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, the fact that none of the Act’s provisions contain language specifically limiting the Board’s authority to enact a notice-posting requirement reflects the absence of statutory authority for actions outside those defined responsibilities as a threshold matter.” Id. at 18-19.
  • “We, like the Chamber, read the language in Section 6 [of the NLRA] as requiring that some section of the Act provide the explicit or implicit authority to issue a rule. Because the Board is nowhere charged with informing employees of their rights under the NLRA, we find no indication in the plain language of the Act that Congress intended to grant the Board authority to promulgate such a rule.” Id. at 21.

District court decision

April 13, 2012

The U.S. District Court for the District of South Carolina ruled that the NLRB violated the Administrative Procedure Act (APA) in promulgating the rule. The court noted that nothing in the National Labor Relations Act (NLRA) “even mentions the issue of notice posting” (emphasis added) - much less compels or even permits the NLRB to issue such a rule. Moreover, the legislative history of the NLRA does not support a finding that Congress intended to impose a universal "notice-posting" requirement on employers. The NLRB has announced that it will appeal the ruling.

Relying in part on the South Carolina court's ruling, on April 17, 2012, the U.S. Court of Appeals for the D.C. Circuit temporarily enjoined enforcement of the rule pending the resolution of an appeal of a D.C. district court ruling that upheld the rule. In light of the DC Circuit's order, the NLRB announced that “regional offices will not implement the rule pending the resolution of the issues before the court.” An April 27 letter from the NLRB clarified that it would comply with the D.C. Circuit's order, and would not enforce the rule nationwide “unless and until” the South Carolina’s judgment is reversed by the Fourth Circuit or the U.S. Supreme Court.

U.S. Chamber challenges NLRB Poster Rule

September 19, 2011

The U.S. Chamber filed a lawsuit challenging the NLRB’s “notice poster” regulation – which would have required employers to post biased notices of employees’ rights to organize under the NLRA.

NLRB’s opening brief filed with the Fourth Circuit on 9/28/12. NCLC filed its response brief on 11/28/12. The NLRB’s reply brief filed on 12/20/12. Decided 6/14/13.

Complaint filed 9/19/2011. On 10/5/11, the NLRB postponed the effective date of the final rule until 1/31/12. Chamber's Motion for Summary Judgment filed 11/9/11. National Labor Relations Board's Motion for Summary Judgment filed 11/9/11. NCLC's Memorandum in Opposition filed 12/7/11. NLRB’s Memorandum in Opposition filed 12/7/11. On 12/23/11, the NLRB further postponed the effective date of the final rule until 4/30/12. District court decision 4/13/12. On 4/17/12, the DC Circuit enjoined enforcement of the rule pending an appeal of a related lawsuit.

Decided by Fourth Circuit 6/14/2013. Petition for Rehearing filed 7/29/2013. Petition Denied 8/12/2013.

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