The National Labor Relations Board’s (NLRB) August 2011 “Notification of Employee Rights” rule was struck down by the U.S. Court of Appeals for the Fourth Circuit
on June 14, making it the second appellate court to invalidate the rule this year.
In the decision in Chamber of Commerce v. NLRB, the court ruled that the NLRB exceeded its authority when it adopted the rule. This decision is consistent with the concurring opinion in the May 7 ruling by the U.S. Court of Appeals for the D.C. Circuit
, which held the NLRB lacked authority is require the posting. The D.C. Circuit also held the rule violated employer free speech rights under the National Labor Relations Act. The Fourth Circuit, however, said it did not need to address the free speech issue because the NLRB clearly lacked the authority to promulgate the rule in the first place.
The notice posting rule has been under an injunction since April 2012 in response to a request by the ABC-led Coalition for a Democratic Workplace, which was filed in the wake of seperate court decisions at the District Court level. The NLRB has not stated whether it plans to appeal the rulings to the U.S. Supreme Court.
This ruling does not change the compliance requirements
for federal contractors under Executive Order 13496 (or its subsequent 2010 implementing regulations) to post a similar notice from the U.S. Department of Labor.