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Fourth Circuit strikes NLRB mandate to post union rights

The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] on Friday that the National Labor Relations Board (NLRB) [official website] overstepped its authority by issuing a rule that would have required employers to post notices informing workers of their rights under federal labor law. The decision accords with the unanimous decision [opinion, PDF; JURIST report] by the US Court of Appeals for the District of Columbia Circuit [official website] in National Association of Manufacturers v. National Labor Relations Board. The Fourth Circuit agreed with the DC court that "the rulemaking function provided for in the National Labor Relations Act (NLRA) [text], by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice [ULP] charges and conducting representation elections upon request." The court stressed that "[a]lthough the Board is specifically empowered to 'prevent' unfair labor practices, the Board may not act until an unfair labor practice charge is filed alleging a violation of the Act." In holding that the Board was not empowered to promulgate the rule, the court reasoned, "Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so."

In 2011 the NLRB issued the regulation [JURIST report] requiring employers to post their employees' rights under the NLRA. These rights include the right to unionize, to bargain collectively and to refuse pressures to do either. The poster also gives some examples of unfair business and union practices and information on contacting the NLRB. The National Association of Manufacturers (NAM) [advocacy website] filed a challenge in the US District Court for the District of Columbia [official website], which upheld [opinion] the NLRB's requirement but ruled that failure to post could not be considered an unfair labor practice. A similar challenge to the rule was filed in the US District Court for the District of South Carolina [official website], which held [opinion] that the NLRB was incapable of enacting the new rules entirely because the NLRA neither required nor provided for such regulation. JURIST Guest Columnist Chris Schlag argued in favor of the rule [JURIST op-ed] last year, finding that open communication is the foundation of a healthy and fair employment environment.

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