Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA. On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case.
In addition, the Fourth Circuit Court of Appeals in Chamber of Commerce v. NLRB, __ F.3d __, Civil No. 12-1757 (4th Cir. 2013), had ruled against the NLRB on the challenge to its notice-posting rule, and, on August 13, 2013, refused to rehear its decision in that case.
The only option left, should the NLRB wish to revive its notice posting rule, is to appeal these cases to the U.S. Supreme Court.
On April 13, 2012, U.S. District Judge David C. Norton of the U.S. District Court for South Carolina, ruled in an action brought by the U.S. Chamber of Commerce and others that the National Labor Relations Board’s notice posting rule set to go into effect April 30, 2012, was “unlawful under the [Administrative Procedure Act] … 5 U.S.C. § 706….” This rule was applicable to all private employers subject to the National Labor Relations Act. The ruling conflicts with an earlier ruling by the U.S. District Court for the District of Columbia upholding in part the NLRB’s notice posting rule.