September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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Another Loss for the National Labor Relations Board (NLRB) on Notice Posting Rule

The Fourth Circuit has now joined the D.C. Circuit in striking down the NLRB’s proposed notice posting rules. The Board sought to have all employers post notices in their workplace informing employees of their right to form and join unions, among other things. Our previous coverage of this controversial initiative can befound here.

On May 7, 2013, the D.C. Circuit struck down the same rule in a separate case, but did so on employer free speech grounds.  The Court did not decide if the NLRB had the authority to promulgate the rule.  The Fourth Circuit’s decision on Friday went further and concluded the NLRB exceeded its largely “reactive” authority to respond to election petitions and unfair labor practice charges.

The Court held, “We agree with the district court that the rulemaking function provided for in the NLRA, by its express terms, only empowers the board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.”  The Fourth Circuit’s opinion went further and noted, “Indeed, there is no function or responsibility of the board not predicated upon the filing of an unfair labor practice charge or a representation petition.”

The Courts’ opinions can be found here and here.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume III, Number 168

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About this Author

John Koenig, Barnes Thornburg Law Firm, Atlanta and Indianapolis, Labor and Employment Law Attorney
Partner

John T.L. Koenig is a partner in the Labor & Employment Department of Barnes & Thornburg LLP. He maintains a national, full-service practice representing management exclusively in all aspects of labor and employment law.

Traditional Labor

Mr. Koenig represents companies in the grievance and arbitration process, collective bargaining, strike preparation, union organizing and election matters, and in unfair labor practice and representational cases before the NLRB. He frequently trains supervisors on effective and...

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