Another Circuit Court Strikes Down AGC-Opposed NLRB Posting Rule

The U.S. Court of Appeals for the Fourth Circuit has ruled that the National Labor Relations Board’s (NLRB) notice-posting rule is invalid.  The regulation, which has been on hold for over a year and has never taken effect, would require most employers to post designated notices informing employees of certain rights under the National Labor Relations Act (NLRA), including the right to organize.  The decision is the latest in a series of significant victories by employers challenging the Board’s authority in court, including a decision last month by the D.C. Circuit striking down the same rule on different grounds. To assess the scope of the Board’s authority, the Fourth Circuit considered the plain language, structure, and history of the NLRA, as well as comparisons to other labor statutes.  It found that Congress has empowered the Board to act only in a reactive manner; not a proactive one.  While the NLRA does grant the Board authority to issue regulations, that authority is limited to carrying out the agency’s statutorily defined roles in addressing unfair labor practice charges and in conducting representation elections upon request.  Furthermore, the court noted, Congress has enacted other labor laws expressly giving “sister agencies” authority to promulgate notice requirements at the same time it chose not to do so in the NLRA.  The court, therefore, held that the Board exceeded its authority in issuing the challenged rule. The Board has not yet indicated how it will respond.  While the agency has some options for seeking review of the Fourth Circuit and D.C. Circuit decisions, the fact that two appellate courts have ruled against it on separate grounds renders it unlikely that the Board will pursue the matter further. While employers need not comply with the Board’s posting rule at this time, covered federal contractors must still comply with similar posting rules issued by the Department of Labor and FAR Council. For more information, please contact Denise Gold at (703) 837-5326 or goldd@agc.org.