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CHAMBER OF COMMERCE OF U.S. v. N.L.R.B.

No. 12-1757.

721 F.3d 152 (2013)

CHAMBER OF COMMERCE OF the UNITED STATES; South Carolina Chamber of Commerce, Plaintiffs-Appellees, v. NATIONAL LABOR RELATIONS BOARD; Mark Pearce, in his official capacity as Chairman of the National Labor Relations Board; Brian Hayes, in his official capacity as member of the National Labor Relations Board; Lafe Solomon, in his official capacity as General Counsel; Richard F. Griffin, Jr., Member; Terence F. Flynn, Member; Sharon Block, Member, Defendants-Appellants, and Craig Becker, in his official capacity as member of the National Labor Relations Board, Defendant. Charles J. Morris; American Federation of Labor and Congress of Industrial Organizations; Change to Win; National Employment Law Project, Amici Supporting Appellants, The Honorable John Kline, Chairman, Committee on Education and the Workforce, United States House of Representatives; Joe Wilson; Rodney Alexander; Steve Pearce; Gregg Harper; Phil Roe; Glenn Thompson; Tim Walberg; Lou Barletta; Larry Bucshon; Scott Desjarlais; Trey Gowdy; Joe Heck; Bill Huizenga; Mike Kelly; James Lankford; Kristi Noem; Alan Nunnelee; Reid Ribble; Todd Rokita; and Daniel Webster, United States Representatives, Amici Supporting Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: June 14, 2013.

Attorney(s) appearing for the Case

ARGUED: Dawn L. Goldstein , National Labor Relations Board, Washington, D.C., for Appellants. Lemuel Gray Geddie, Jr. , Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Greenville, South Carolina, for Appellees. ON BRIEF: Lafe E. Solomon , Acting General Counsel, Celeste J. Mattina , Deputy General Counsel, John H. Ferguson , Associate General Counsel, Margery E. Lieber , Deputy Associate General Counsel, Eric G. Moskowitz , Assistant General Counsel, Abby Propis Simms , Deputy Assistant General Counsel, Joel F. Dillard , Kevin P. Flanagan , Micah P.S. Jost , National Labor Relations Board, Washington, D.C., for Appellants. Benjamin P. Glass , Ogletree, Deakins, Nash, Smoak & Stewart, PC, Charleston, South Carolina, Cheryl M. Stanton , Ogletree, Deakins, Nash, Smoak & Stewart, PC, New York, New York, for Appellees. Robin S. Conrad , Shane B. Kawka , Rachel L. Brand , National Chamber Litigation Center, Inc., Washington, D.C., Howard M. Radzely , Jonathan C. Fritts , David M. Kerr , Morgan, Lewis & Bockius LLP, Washington, D.C., for Appellee Chamber of Commerce of the United States. Charles J. Morris , Professor Emeritus of Law, Dedman School of Law, Southern Methodist University, San Diego, California, for Charles J. Morris, Amicus Supporting Appellants. Lynn Rhinehart , American Federation of Labor & Congress of Industrial Organizations, Washington, D.C., for American Federation Of Labor And Congress of Industrial Organizations. Amicus Supporting Appellants; Walter Kamiat , Washington, D.C., for Change to Win, Amicus Supporting Appellants; Catherine K. Ruckelshaus , Tsedeye Gebreselassie , National Employment Law Project, New York, New York, for National Employment Law Project, Amicus Supporting Appellants; Edgar N. James , Jeff Vockrodt , James & Hoffman, PC, Washington, D.C., for Amici Curiae Supporting Appellants. Charles I. Cohen , David R. Broderdorf , Morgan, Lewis & Bockius LLP, Washington, D.C.; Joshua W. Dixon , K & L Gates LLP, Charleston, South Carolina; Philip A. Miscimarra , Ross H. Friedman, Rita Srivastava , Morgan, Lewis & Bockius LLP, Chicago, Illinois; Andriette A. Roberts , Morgan, Lewis & Bockius LLP, New York, New York, for Amici Curiae Supporting Appellees.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge FLOYD and Judge THACKER joined.

DUNCAN, Circuit Judge:

The National Labor Relations Board (the "NLRB" or the "Board"), after notice and comment, promulgated a rule that would require employers subject to the National Labor Relations Act (the "NLRA" or the "Act"), 29 U.S.C. §§ 151-169, 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; ...

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