Wyatt Employment Law Report


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NLRB’s Notice-Posting Rule Finally Rejected By Two Courts of Appeals

By Edwin S. Hopson

Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA.  On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case.

In addition, the Fourth Circuit Court of Appeals in Chamber of Commerce v. NLRB, __ F.3d __,  Civil No. 12-1757 (4th Cir. 2013), had ruled against the NLRB on the challenge to its notice-posting rule, and, on August 13, 2013, refused to rehear its decision in that case.

The only option left, should the NLRB wish to revive its notice posting rule, is to appeal these cases to the U.S. Supreme Court.


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Fourth Circuit Court of Appeals Rules NLRB Recess-Appointments Were Invalid

By Edwin S. Hopson

On July 17, 2013, the U.S. Court of Appeals for the Fourth Circuit in NLRB v. Enterprise Leasing Company Southeast and Huntington Ingalls Inc. v. NLRB, joined the D.C. and Third Circuits in deciding that the President’s recess appointments to the NLRB were invalid.  The Court’s panel was  split 2 to 1, with Senior Judge Hamilton writing for the majority, joined by Judge Duncan, and with dissenting Judge Diaz arguing in favor of the government’s position.


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A Second Court of Appeals Invalidates NLRB’s Notice Posting Rule

By Edwin S., Hopson

On June 14, 2013, the U.S. Court of Appeals for the Fourth Circuit in South Carolina Chamber of Commerce v. NLRB,  No. 12-1757 (4th Cir. 2013) became the second federal Court of Appeals to reject the NLRB’s notice posting rule.  On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit had also invalidated the NLRB’s notice posting rule in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013).

The Fourth Circuit Court of Appeals stated, in part:

“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.”