Fourth Circuit Joins D.C. Circuit In Vacating NLRB Notice Posting Rule

more+
less-

Last month, we reported on the D.C. Circuit’s decision invalidating the National Labor Relations Board’s “notice posting rule” that would have required nearly 6 million employers to conspicuously display the Board’s employee-rights poster. Last week, the Fourth Circuit decided an appeal from a South Carolina district court, and joined the D.C. Circuit in rejecting the Board’s rule.  The Fourth Circuit’s decision avoided the broader constitutional questions raised by the D.C. Circuit and held simply that the NLRB had exceeded the limited powers Congress provided it under the National Labor Relations Act.

The unanimous panel of judges observed that other statutes that compel notice postings--the FMLA, Title VII, the ADA, and even the Railway Labor Act--all contained specific statutory provisions providing for those notices.  Unlike those other statutes, the court found that Congress had limited the NLRB in the National Labor Relations Act to a more reactionary role and had not provided for a compelled notice. The Fourth Circuit explained that the Board cannot act under the NLRA until after an unfair labor practice charge or representational matter is filed.  Therefore, the court reasoned that the Act did not permit the Board to independently impose a duty on employers to post notices without a case-by-case determination pursuant to an unfair labor practice remedy or prior to a representation election.

For now, employers are not required to post the NLRB’s notice. As with the D.C. Circuit’s decision, the Fourth Circuit’s decision does not impact federal contractors’ duty to post a similar notice, since the authority for that notice comes from an Executive Order and a resulting Department of Labor regulation.  The NLRB has asked for additional time to consider whether to appeal the Fourth Circuit’s decision to the full Fourth Circuit or directly to the Supreme Court. We will continue to report on any future developments in this case or the D.C. Circuit case. 

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.
×
Loading...
×
×