Fourth Circuit Voids NLRB Posting Rule

Yesterday, the U.S. Court of Appeals for the Fourth Circuit joined the U.S. Court of Appeals for the D.C. Circuit in invalidating the National Labor Relations Board “poster rule.” This rule required employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites. In Chamber of Commerce v. NLRB, the Fourth Circuit held that the NLRB exceeded its authority in enacting the rule. As Judge Allyson Duncan explained for the court:

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. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule

I blogged about the D.C. Circuit’s decision here.

For those who care about such things, Judge Duncan was nominated by President Bush and her opinion was joined in full by Judges Henry Floyd and Stephanie Thacker, who were both nominated by President Obama.