Earlier today, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower court decision invalidating the National Labor Relations Board’s August 2011 rule which would require most private employers to post notices in the workplace explaining employee rights under the National Labor Relations Act.  In so doing, the 4th Circuit joins the D.C. Circuit which had earlier struck down the rule.  Today’s decision in Chamber of Commerce et al. v. National Labor Relations Board et al., No. 12-1757 (4th Cir. June 14, 2013), however, went further than the earlier decisions, asserting express limitations on the authority of the Board.

The rule, announced by the Board two years ago, required employers to

post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…

Failure to post the notice would be an unfair labor practice under Section 8(a)(1) of the NLRA. The Board also intended failure to post the notice to the toll the six-month statute of limitations for unfair labor practice charges.  Shortly after the rule was promulgated, employer groups filed suit challenging it, and the Board postponed implementation. In March 2012, the D.C. District Court struck down certain elements of the rule, but held that the NLRB did have the authority to require private-sector employers to post these notices. Weeks later, the South Carolina District Court ruled that the Board did not have the authority to issue the notice-posting rule.  Earlier this year, the D.C. appeals court vacated the rule, finding it violated employers’ free speech under Section 8(c) of the National Labor Relations Act, and violated the Act’s limitations period in Section 10(b).

In today’s decision, the Court did not address those arguments, instead simply holding that Congress never intended to allow this kind of proactive rulemaking by the Board:

…the rulemaking function provided for in the NLRA, by its express terms, only 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 Court noted that a number of other federal labor statutes compel posting of employee notices like the Board tried to implement here. The critical distinction, however, is that these statutes — including the Railway Labor Act, Title VII of the Civil Rights Act of 1964, the Occupational Health and Safety Act, Americans with Disabilities Act, and Family and Medical Leave Act, among others — contain explicit statutory provisions allowing therefor.

Given the current political controversy swirling about the Board, and its current status and composition, it is questionable whether any official action will be taken with respect to the rule any time soon.  Unless we hear otherwise, employers should presume, at the very least, the Board’s self-imposed stay of implementation will remain in effect.

More coverage and commentary: