South Carolina Court Strikes Down NLRB Notice-Posting Rule

by Morgan Lewis

Judge holds that NLRB posting requirement exceeds Board's rulemaking authority under the Administrative Procedures Act.

In the second of two anticipated rulings on the issue, Judge David C. Norton of the U.S. District Court for the District of South Carolina issued a decision striking down the National Labor Relations Board's (NLRB's or Board's) final rule (the Rule) requiring all employers subject to the Board's jurisdiction—the vast majority of employers doing business in the United States—to post a notice in the workplace informing employees of certain of their rights under the National Labor Relations Act (NLRA).

In his April 13 ruling in Chamber of Commerce v. NLRB, Judge Norton held that the Board exceeded its authority under the Administrative Procedures Act (the federal law that governs the way in which administrative agencies may propose and establish regulations) by promulgating the Rule and, therefore, the Rule was invalid in its entirety.

Morgan Lewis has been participating in the NLRB notice-posting litigation before Judge Norton on behalf of 36 members of Congress as amici curiae.


The NLRA gives employees the right to "form, join, or assist" unions, to bargain collectively with their employers, or to refrain from engaging in such activities. Although less than 7% of private sector employees are represented by unions, the NLRA's protections extend to nonunion employees as well as union-represented employees.

Under the Rule, which is scheduled to go into effect on April 30, 2012, affected employers must post a notice informing employees of their right, among other things, (1) to"[o]rganize a union"; (2) to "take action . . . to improve [their] working conditions by, among other means, raising work-related complaints directly with [their] employer or with a government, and seeking help from a union"; and (3) to "strike and picket." The required notice must be posted in the same place where other notices are posted. The Rule also requires that the notice be posted on an employer's intranet or Internet site if the employer customarily communicates with its employees by such means.

The Rule states that failure to post the notice could have three adverse effects: (1) it could be considered an unfair labor practice under Section 8(a)(1) of the NLRA; (2) failure to post the required notice could toll the six-month statute of limitations for filing unfair labor practices in other cases; and (3) the NLRB could use the failure to post the notice as evidence of an employer's unlawful motive in other unfair labor practice cases.

In a March 2 ruling on the same issue in National Association of Manufacturers v. NLRB, Judge Amy Jackson of the U.S. District Court for the District of Columbia issued a decision upholding the Board's right to issue the Rule, but striking down two key enforcement mechanisms for failure to post the notice—making an employer's failure to post the notice an unfair labor practice and the tolling of the statute of limitations.[1]

Judge Norton's Decision

Judge Norton's opinion begins by explaining the two-step Chevron analysis that must be applied to determine whether an administrative agency has exceeded the rulemaking authority delegated to it by Congress.[2] Under Chevron step one, the court must determine whether Congress has directly spoken to the question at issue. If the intent of Congress is clear, then the analysis is at an end because both the court and the agency must defer to the intent of Congress. If, however, the statutory language is ambiguous, the court must proceed to Chevron step two and determine whether the agency's action is based on a permissible construction of the statute.

In applying Chevron step one, Judge Norton looked to (1) the plain language of Section 6 of the NLRA, which grants the Board the authority to promulgate rules "necessary to carry out" the rest of the statute; (2) the structure of the NLRA as a whole; (3) the legislative history of the NLRA; and (4) other relevant statutes. Based on his review of these sources, Judge Norton concluded that Congress had intended the Board to function "as a reactive agency" that takes action only when a member of the public files an unfair labor practice charge or a representation petition. Further, Judge Norton held that the fact that Congress had included explicit notice-posting requirements in numerous other statutes, while failing to include such a requirement in the NLRA or to add one as part of the multiple amendments that have been enacted over time, indicated that Congress did not intend to delegate the authority to require the posting of notices to the Board. Accordingly, Judge Norton held that, while the Board has the power to promulgate rules necessary to its function of deciding unfair labor practice charges and representation issues, it cannot create rules that "place . . . affirmative obligation[s] on employers prior to a charge or petition first being filed." Judge Norton ruled, therefore, that the Rule could not survive step one of the Chevron analysis and that the Board had exceeded its authority under the Administrative Procedures Act by promulgating the Rule.


The split created by the differing decisions in the South Carolina and D.C. litigation creates some uncertainty regarding the immediate future of the Rule. Judge Norton's decision squarely holds that the Rule is unlawful, but the Board may seek a stay pending an appeal to the U.S. Court of Appeals for the Fourth Circuit that would allow the Board to enforce the Rule until the Fourth Circuit rules on the issue. Judge Jackson's ruling in the D.C. litigation has already been appealed to the U.S. Court of Appeals for the D.C. Circuit, and the plaintiffs in that case may renew a previously rejected attempt to block enforcement of the Rule pending that appeal. The Board has not yet commented on or taken any action with respect to the South Carolina ruling. However, there is a strong possibility that the Board will voluntarily delay implementation of the Rule until the appellate courts have ruled on the issue.

As noted above, Morgan Lewis has been participating in the NLRB notice-posting litigation before Judge Norton, representing 36 members of Congress, including John Kline, Chairman of the House Committee on Education and the Workforce, as amici curiae. Morgan Lewis also represented the same parties in the separate notice-posting lawsuit in the District of Columbia. Our amicus brief filed in the South Carolina litigation is available at; our amicus brief filed in the D.C. litigation is available at

[1]. See our LawFlash regarding that decision, "D.C. Court Issues Split Decision in NLRB Notice Case" (Mar. 6, 2012), available online at

[2]. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).


Written by:

Morgan Lewis

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*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. Or, sign up using your email address.