Yesterday the Court of Appeals for the District of Columbia Circuit issued two, one-sentence orders denying the National Labor Relations Board’s requests for a rehearing in National Association of Manufacturers v. NLRB, in which the D.C. Circuit vacated the NLRB’s notice-posting rule issued by the Board. The NLRB’s notice-posting rule required most private employers to post notices in the workplace explaining employee rights under the National Labor Relations Act. Specifically, 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…

In May 2013, a three-judge panel of the D.C. Circuit struck the rule because it found that two of the rule’s enforcement mechanisms violated employers’ free speech under Section 8(c) of the National Labor Relations Act, and that the third enforcement mechanism violated the Act’s limitations period in Section 10(b) for filing unfair labor practice charges.

A month later, the U.S. Court of Appeals for the Fourth Circuit also invalidated the notice posting rule. The Fourth Circuit went even further than the D.C. Circuit, asserting express limitations on the authority of 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.

On August 12, 2013, the Fourth Circuit similarly denied a request for rehearing en banc.

The NLRB has not yet commented on the recent rulings nor indicated whether it will file an appeal with the Supreme Court. Moreover, although the Board’s authority to act is no longer in question, it is still unknown whether it will take any official action with respect to the rule any time soon. In the meantime, and until we hear otherwise, employers should presume the Board’s self-imposed stay of implementation will remain in effect.

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