D.C. Circuit Invalidates 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