The NLRB's notice posting rule, explained in prior posts, racked up another loss last week. The U.S. Court of Appeals for the Fourth Circuit held, in a 3-0 decision (pdf), that the NLRB lacked the statutory authority to issue a rule requiring the posting of a notice.
The court found that the NLRB was not authorized to adopt the rule. Analyzing the NLRA, the court found that there was no express delegation of authority from Congress to the NLRB to adopt a proactive, notice posting requirement. Rather, the Court found that the NLRB was intended to be a reactive agency, responding to unfair labor practice charges and representation petitions filed with it. There was no support in the statutory language or the history of the NLRA for a notice posting requirement.
The court also noted that Congress had amended the NLRA three times over a 39-year period. During that period, Congress adopted several other employment-related statutes that explicitly contained a notice requirement, like the Civil Rights Act of 1964. Yet, Congress did not include a notice requirement in the NLRA. The court found that this subsequent legislative history further confirmed that Congress did not intend to delegate to the NLRB the authority to adopt a notice posting rule.
Earlier this year, the D.C. Circuit Court of Appeals also invalidated the rule. The Fourth Circuit's approach was, however, slightly different from the D.C. Circuit's approach. That court found that the rule violated Section 8(c) of the NLRA, which protects an employer's freedom of speech. The court's opinion did not expressly reach the statutory authority question, although two of the judges who heard that case would have also held, like the Fourth Circuit, that the NLRB lacked the authority to adopt the rule.