Wyatt Employment Law Report


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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.”


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Court Invalidates NLRB’s Notice Posting Rule

 By Edwin S. Hopson

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013), regarding the NLRB’s issuance of a regulation in August 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, post a NLRB notice to employees regarding employee rights under the NLRA. The regulation had been stayed pending resolution of the National Association of Manufacturers case.

The court of appeals held that the notice posting regulation was contrary to Sections 8(c) and 10(b) of the NLRA and therefore invalid in its entirety. 

While the court found that the NLRB had a lawful quorum at the time the rule was issued in 2011, it nevertheless stated (without deciding) that former NLRB Member Craig Becker, a recess appointee, was not validly appointed, citing its recent decision in Noel Canning v. NLRB.

The notice posting decision may be found at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/E16F1375FA672CCE85257B64004E8BB2/$file/12-5068-1434608.pdf

 


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U.S. Chamber of Commerce Files Suit to Block the NLRB’s New Notice Posting Rule

By Edwin S. Hopson

According to a press release issued by the U.S. Chamber of Commerce, it and the South Carolina Chamber of Commerce, on September 20, 2011, filed a lawsuit against the National Labor Relations Board (NLRB) challenging the NLRB’s new rule requiring businesses to post notices explaining employees’ rights to unionize. The case is styled Chamber of Commerce, et al. v. National Labor Relations Board, et al. and was filed in the U.S. District Court of South Carolina.

The press release quoted Robin Conrad, Executive Vice President of the National Chamber Litigation Center, as saying, “[t]he NLRB has no authority to impose any of these requirements. This is nothing more than labor regulation run amok. Adding insult to injury, the Board’s new rule violates the First Amendment by forcing employers to use their own resources to post the NLRB’s pro-union message on the company’s own property.”

The lawsuit claims that the NLRB’s final rule regarding Notification of Employee Rights Under the National Labor Relations Act violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and the First Amendment of the Constitution. The NLRB’s new rule — which applies to most private employers in the U. S.– would become effective on November 14, 2011.

This action follows a similar one filed by the National Association of Manufacturers on September 8, 2011, in the U.S. District Court for the District of Columbia.