Last Friday, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) affirmed the decision of a South Carolina federal district court, invalidating regulations issued by the National Labor Relations Board that would have required most U.S. employers to post notices of employee rights to organize and collectively bargain. Failure to post the notice would be an unfair labor practice, and would toll the period of limitations for an employee filing a ULP claim. Where the failure was willful, it would result in a finding of anti-union animus that would weigh against the employer in any subsequent NLRB proceeding.

In Chamber of Commerce of the U.S. v. NLRB, the plaintiffs contended that the NLRB exceeded its statutory authority in issuing the posting rules. The NLRB argued that the poster was no different from those required by the EEOC, OSHA or other federal agencies, and merely informed employees of their rights under federal labor laws.

The Fourth Circuit disagreed, drawing distinctions between the NLRB and other federal agencies that implement employment laws. Unlike these agencies, the NLRB is essentially reactive. It can address ULPs and conduct representation elections upon request, but has no independent investigative powers. The National Labor Relations Act does not authorize the NLRB to subject employers who have not committed ULPs to any affirmative requirements. Congress would have to amend the NLRA to confer these powers.

Earlier this year, the D.C. Circuit also invalidated the posting rule, but on other procedural grounds. The NLRB had suspended implementation of the rule following these court decisions. Absent review and reversal by the full Fourth Circuit or the Supreme Court, employers located in the Fourth Circuit will not have to comply with any future attempt by the NLRB to resuscitate the posting rule.