Friday, March 2, 2012
D.C. District Court Judge Berman issued her opinion today in NAM v. NLRB, the challenge to the NLRB's notice posting rule. She upheld the substance of the rule, conlcuding that it was within the NLRB's powers. However, she rejected the rule's tolling of the statute of limitations against employers who don't post, holding that it was contrary to the NLRA's explicit time period. The opinion suggests that if the NLRB had merely permitted tolling in exceptional cases, it would've been OK, but making tolling the default result was not.
Judge Berman also interpreted the rule as a stating that the failure to post is a per se Section 8(a)(1) violation and held that this exceeded the Board's power. The main reason is that she interprets the rule as finding that the failure to post/inform is always considered interference, which she held is inconsistent with 8(a)(1). That said, she acknowledged that the failure to post can be interference and allows the Board to determine whether the failure to post violates 8(a)(1) on a case-by-case basis.
This qualification really isn't a big deal, as the Board will likely produce some boilerplate language and find an 8(a)(1) in most of time, except for cases with special circumstances--that is, pretty much what it would've done anyway. This brings me to a quibble with the decision. Even if the per se interpretation is correct (I'm not so sure it is given the "may find" language in the actual rule, but it's a reasonable interpretation of the entire regulation), Judge Berman's analysis of Section 8(a)(1) looked like something done by a judge that never sees NLRB cases, which is not surprising from a district court. In particular, she interprets 8(a)(1) almost entirely by using a dictionary to define its terms, without reference to the substantice interpretation by any NLRB cases. As a result, she doesn't acknowledge or recognize that 1. Section 8(a)(1) cases touch on conduct--even unintentional--that is "likely" to infringe employees rights rather than actually infringes; and 2. that the NLRB always balances the parties' interests in Section 8(a)(1) cases, even where there is interference. Neither is crucial to the decision, but as I was reading, I got increasingly alarmed by cites to dictionaries without any reference to NLRB cases on point. One point that was more central to the main question of whether inaction could violate Section 8(a)(1) was her dismissal of the Board's citation to Truitt. She distinguishes that case because the Supreme Court only discusses Section 8(a)(5), even though the Board found "violations of Section 8(a)(1) as well." Of course, what she doesn't seem to realize is the existence of dependent 8(a)(1) violations, which certainly existed in Truitt. A better rejoinder was her comment that in Truitt cases, the Board makes a case-by-case analysis--an analysis that, under her interpretation, would not happened pursuant to this rule.
One question I have is what the NLRB argued about the per se v. case-by-case interpretation. Did it claim that it would automatically find an 8(a)(1) violation if a notice wasn't posted? Any insights on this would be welcome in the comment section.
Hat Tip: Patrick Kavanagh