In Chamber of Commerce v. NLRB, the United States Court of Appeals for the Fourth Circuit recently upheld a district court’s decision striking down a rule promulgated by the National Labor Relations Board (“NLRB”) that required employers subject to the National Labor Relations Act (“NLRA”) to post notice informing employees of their rights under the NLRA. Specifically, the rule provided that “[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with [NLRB] contact information and information concerning basic enforcement procedures.” The text of the notice was as follows:
The [NLRA] guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the [NLRB], the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.
The rule went on to list employees’ rights under the NLRA and provide information as to how to “contact the NLRB promptly to protect your rights.” Any employer failing to post the notice was subject to: (1) a finding that it committed an unfair labor practice; (2) a tolling of statutes of limitation for charges of any other unfair labor practices; and (3) a finding of anti-union animus that would weigh against it in any proceedings before the NLRB.
The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce filed suit in federal district court seeking to overturn the rule. The district court granted summary judgment in their favor and struck down the rule, holding that, in promulgating the rule, the NLRB “exceeded its authority, in violation of the Administrative Procedure Act.” Said the Court: “Looking to the plain language of the NLRA, its structure, its legislative history, and the notice provisions in other statutes, the court concluded that the [NLRA] does not provide the [NLRB] with the power to enact such a rule.”
On July 29, 2013, the NLRB filed a petition for rehearing or rehearing en banc seeking to overturn the decision and reinstate its notice rule. The petition is still pending. As a result of the petition for rehearing, the mandate that formally closes the appeal has been stayed until the petition for rehearing is decided.