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FMG Law Blog Line

Fourth Circuit Voids NLRB Posting Rule

Posted on: June 18th, 2013

By: Anthony Del Rio

Last week the Fourth U.S. Circuit Court of Appeals struck down the National Labor Relation Board’s (NLRB) 2011 poster rule.  The rule required employers to post information regarding employees’ rights to organize under the National Labor Relations Act (NLRA).  The Fourth Circuit is the second appeals court to strike down the rule, the D.C. Circuit having done so a month prior.

The poster language crafted by the NLRB stated that employees had the right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions. Employers who did not post the notice would have been found to have committed an unfair labor practice.

The D.C. Circuit rejected the rule based on First Amendment grounds, but the Fourth Circuit did not find it necessary to reach the constitutional challenge.  The Fourth Circuit disagreed with the NLRB’s proactive rulemaking (historically, it has only been the NLRB’s responsibility to react to NLRA violations, not to proactively prevent them). The Fourth Circuit held that the NLRB had exceeded their legal authority because the National Labor Relations Act did not charge the NLRB with notifying employees of their rights.

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