Monday, June 17, 2013

Another Day, Another Setback for the NLRB Poster Requirement

Last Friday, the Fourth Circuit Court of Appeals struck down the NLRB's poster requirement in Chamber of Commerce v. NLRB (opinion here). From the Court's introduction:
We agree with the district court that 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, and affirm.
The D.C. Circuit similarly struck down the rule last month. An interesting aspect of the Fourth Circuit decision is that two of President Obama's own appointees were on the unanimous panel.

While there is a chance the Supreme Court will take the case and side with the NLRB, I wouldn't bet on it. The NLRB poster requirement looks like it's done for awhile.

Image: Fourth Circuit seal is public domain as work of federal government. Not official use.