NLRB Setback on Employer Focused Regulations

The NLRB has suffered another setback in its efforts to promulgate its notice posting rule, this time in the Fourth Circuit.  The rule, which has already been invalidated in the D.C. Circuit, would have required private sector employers to post a notice of NLRA-given employee rights in the workplace.  Failure to post the notice would subject employers to:

  • Finding that the employer committed an unfair labor practice
  • Tolling of statutes of limitation for charges of any other unfair labor practices
  • Finding of antiunion animus that would weigh against the employer in any proceedings before the NLRB.

The Fourth Circuit focused much of its Chamber of Commerce of U.S. v. NLRB ruling on whether the NLRB has the authority to proactively require of employers actions such as posting notices.  After reviewing the NLRA’s actual language, the court ruled that the NLRA expressly empowers the NLRB to “carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.”  Furthermore, the court upon considering the NLRA’s legislative history noted that “Congress despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the [NLRB] the statutory authority to do so.”

The Fourth Circuit’s opinion differs from the D.C. Circuit’s only because the D.C. Circuit struck down the notice posting rule because it violated Section 8(c) of the NLRA, which prohibits the NLRB from finding non-coercive employer speech to be a Unfair Labor Practice (ULP), or evidence of a ULP.