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

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June 21, 2013

By Doug Hass

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. 

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