This alert may appear to be “more of the same” to some. But good news is always worth repeating.
Last month, we reported that the D.C. Circuit Court of Appeals had struck down the National Labor Relations Board’s (NLRB) poster requirement. Please click here to see our May 8 alert
for more details concerning the content and background of this poster requirement.
In the May alert, we noted that another case, which had been filed in South Carolina, United States Chamber of Commerce and South Carolina Chamber of Commerce, et.al. v. NLRB, et.al., was pending in the Fourth Circuit Court of Appeals (which has jurisdiction over Maryland, Virginia, West Virginia, North Carolina and South Carolina).
Last Friday, the Fourth Circuit became the second federal Court of Appeals to strike down the NLRB’s posting requirement as being an invalid use of the Board’s authority. Specifically, the Fourth Circuit held that the National Labor Relations Act (NLRA)
[O]nly 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.
The Fourth Circuit thus based its decision on a different rationale than the prior D.C. Circuit opinion, which was based on the First Amendment right of employers “not to have to engage in ‘right to unionize’ speech.” The Fourth Circuit, by contrast, called into question the NLRB’s authority to promulgate any rule which is not explicitly cited in the NLRA, which is a greater blow conceptually to the overall scope of the Board’s power than the D.C. Circuit’s more general constitutional position.
As this issue is ultimately anticipated to end up before the U.S. Supreme Court, it will be interesting to see which, if either, of these approaches the high court decides to take, if it too decides to strike down the NLRB’s posting requirement once and for all. Will the Court use this issue as another pro-business opportunity to “clip the Board’s wings” or craft a more narrowly-tailored opinion addressing only the specific poster at issue?
The NLRB has come under considerable fire under during the Obama administration for its aggressive, pro-union rulemaking. It currently lacks a valid quorum to act at all as a consequence of President Obama using recess appointments to fill the five-member Board. A current slate of five nominees is awaiting a Senate vote, but Republicans are unlikely to allow this to happen at least until the (also anticipated Supreme Court) ruling on the validity of President Obama’s recess appointees is issued.
We will continue to keep you posted on both pro- and anti-NLRB developments in the coming months. As we have explained in prior alerts – and as this now beleaguered universal posting requirement illustrates – all employers need to remain aware of developments in this area, as the Board has jurisdiction over nearly all employers – not just those with unions.