Alexandria E. Cuff contributed to the content of this post.

The U.S. Court of Appeals for the Fourth Circuit joined the U.S. Court of Appeals for the D.C. Circuit in striking down a National Labor Relations Board (“NLRB”) rule requiring employers to post a notice telling employees about their National Labor Relations Act (“NLRA”) rights, including their right to form or join a union. Attached is the decision in Chamber of Commerce v. NLRB.

In August 2011, the NLRB adopted a rule requiring roughly six million NLRA-covered private employers to post a notice alerting employees of their rights to engage in NLRA-protected “concerted” activities.

According to the Fourth Circuit, Congress never gave the NLRB the authority to issue the poster rule. The NLRA’s rulemaking authority extends only to “carry[ing] out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.”

The Fourth Circuit is now the second federal appellate court to reject the NLRB’s poster rule. As noted in our earlier post here, the D.C. Circuit last month used “hypocrisy” to describe the Board’s poster rule position. Why?   Because making an employer’s failure to post the notice an unfair labor practice would clash with the National Labor Relations Act’s preservation and protection of “the right of employers (and unions) not to speak.”