NLRB Lacks Proactive Rulemaking Power

Written by Robert G. Brody and Abby M. Warren on September 15, 2013

The Fourth Circuit joined the D.C. Circuit on June 14, 2013 in ruling that the National Labor Relations Board’s (“Board”) rule requiring employers to post a notice detailing employees’ right to join unions is invalid (Chamber of Commerce of the United States v. NLRB).

Under the twice-invalid rule, if an employer failed to post the notice, this would constitute 1) an unfair labor practice, 2) evidence of unlawful motive in NLRB proceedings, and 3) a basis for tolling of the six-month limitations period for filing unfair labor practice charges.

The D.C. Court’s analysis focused on the First Amendment and free speech.  The Fourth Circuit focused on the lack of authority on the part of the Board to promulgate the rule in the first place.  The Court held that the National Labor Relations Act (“Act”) “only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.”  Essentially the Court held that outside those functions, the Board has no responsibilities.  The Court stated that it could not “accept an interpretation of the Act that would allow the NLRB to bootstrap Section 8(a)(1) into authority to enact the unprecedented rule at issue here.”  The Court quotes the D.C. Circuit saying that the Act does not suggest it is the employer’s duty to fill the “knowledge gap.”

The Board has not indicated whether or not it will muster up the energy to appeal this decision to the Supreme Court.  The Obama Administration is already fighting the Noel Canning and New Vista decisions invalidating the President’s recess appointments.  Their plate seems rather full but we will keep you posted.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at or 203.965.0560.

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Related Topics: Legal Updates, Legislative Updates, NLRB

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More