Chamber of Commerce of the United States v. NLRB - 721 F.3d 152 (4th Cir. 2013)

Rule:

The rule making function provided for in the National Labor Relations Act (NLRA), 29 U.S.C.S. § 151 et seq., by its express terms, only empowers the National Labor Relations Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. There is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition. Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so.

Facts:

The National Labor Relations Board (NLRB), after notice and comment, promulgated a rule that would require employers subject to the National Labor Relations Act (NLRA), to post an official Board notice informing employees of their rights under the Act. Any employer failing to post the notice would be subject to: (1) a finding that it committed an unfair labor practice; (2) a tolling of statutes of limitation for charges of any other unfair labor practices; and (3) a finding of anti-union animus that would weigh against it in any proceedings before the Board. The Chamber of Commerce of the United States and the South Carolina Chamber of Commerce sought final review of the rule. The district court determined that in promulgating the notice-posting rule, the Board exceeded its authority, in violation of the Administrative Procedure Act (the "APA"). Looking to the plain language of the NLRA, its structure, its legislative history, and the notice provisions in other statutes, the court concluded that the Act did not provide the Board with the power to enact such a rule. The court therefore granted summary judgment to the Chamber. The NLRB sought review. 

Issue:

 Did the NLRB exceed its statutory authority in promulgating the challenged rule? 

Answer:

Yes.

Conclusion:

The court affirmed the district court’s decision, holding that the rule making function provided for in the NLRA, by its express terms, only empowered the NLRB to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon the request. Specifically, there was no function or responsibility of the NLRB that was not predicated upon the filing of an unfair labor practice charge or a representation petition. In addition, despite having enacted and amended the NLRA at the same time it enabled sister agencies to promulgate notice requirements, Congress never granted the NLRB the statutory authority to do so. Thus, the court concluded that the NLRB exceeded its statutory authority in promulgating the challenged rule.