April 17, 2014

D.C. Circuit Invalidates National Labor Relations Board (NLRB) Posting Rule

The Court of Appeals for the D.C. Circuit today struck down the NLRB’s rule which required all employers covered by the National Labor Relations Act to post an NLRB-drafted “Notification of Employee Rights under the National Labor Relations Act.” Under that rule, employers failing to post the notice would be subject to an unfair labor practice charge. The rule has been on hold since March 2012 when the District Court partially invalidated the posting regulation and enjoined its application pending this appeal.

In coming to that decision, the D.C. Circuit held that in promulgating the rule, NLRB had departed from its “historic practice” and “negative attitude” toward rulemaking and in doing so violated sections 8(c) and 10(b) of the NLRA. Specifically, the Court found that the enforcement mechanisms placed into the Rule by the Board overstepped the Board’s enforcement authority. Once the enforcement mechanisms were declared unlawful, the Court then found that the posting requirement standing alone was not severable from the Rule. “Here we know that the Board would not have issued a posting rule that depended solely on voluntary compliance. We know this because the Board rejected that regulatory option in the preamble to its final rule. . . . Subpart A must therefore fall along with the rest of the Board’s posting rule.”

Before reaching this decision, the Court first considered whether its decision in Noel Canning which invalidated NLRB action for failure to have a quorum controlled this case. The Court decided that Noel Canning was not dispositive because the Board had a quorum on the date the rule was filed with the Office of the Federal Register.

In their concurring opinion joining in the decision written by Judge A. Raymond Randolph, Judges Karen Lecraft Henderson and Janice Rogers Brown also decided that the NLRB’s rulemaking process was invalid under Section 6 of the NLRA.


About the Author

Barnes & Thornburg’s Labor and Employment Law Department is one of the fastest-growing labor groups in the nation. Two qualities set us apart: Our passion for what we do, and the pride we take in helping clients achieve their business goals. To succeed in the competitive global marketplace, our clients must not only meet but exceed their customers’ expectations. We share this objective, offering superior service, innovative ideas and an understanding of the challenges our clients face.

Our Services
The Labor and Employment Law group offers comprehensive...


Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.