April 13, 2012
A Split on the NLRB's Notice Rule
On the heels of the recent D.C. District Court decision that mostly upheld the NLRB's new notice posting rule, a district court judge has fully rejected the rule [ Download SC Notice Decision ]. In this most recent case, the judge held that the rule exceeded the NLRB's authority to enact rules "necessary to carry out" the provisions of the NLRA. The judge also emphasized, among other things, that the NLRB only reacts to cases brought to it, which the rule contradicts.
I tend to agree with the earlier decision, which viewed the "necessary" language as giving the NLRB broader authority; it seems to me that most agencies are give wide leeway with similar language. Moreover, the stress on the NLRB's reactive role seems overemphasized. That said, the lack of statutory authority for a notice, in contrast to a lot of other statutes, isn't helpful to the NLRB. I don't think that's fatal, but the judge in the recent decision disagrees.
Here's a pie in the sky solution: what if Congress passed a law requiring the posting of an NLRA notice that emphasized employees' right to unionize, not unionize (including decertify), and to act collectively in the absence of a union. In other words, full disclosure. If we're serious about informing employees of their rights--and others and I have written many times about the importance of doing so--then a more complete notice should be a good thing. I know, a snowball's chance of passing. But I'd love to at least see the bill proposed given all I've heard over the years about the need for employees to learn about their right not to be represented.
Given that we won't be seeing legislation anytime soon, we'll just have to follow these cases as they go up on appeal. I won't actually predict this, but it wouldn't surprise me to see this in the Supreme Court eventually. Stay tuned.
Hat Tip: James Young
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Tell me that this is not a political issue: a judge appointed by President Obama upholds the Board's authority, a judge appointed by President George H.W. Bush does not. It just confirms that the battle over "authority" is really being waged by people who don't believe in the right to organize, and thus they don't want employees to know about it.
Posted by: Dennis Walsh | Apr 14, 2012 11:32:29 AM
Oh, I had to laugh at former-Member Walsh's comment about "people who don't believe in the right to organize," since the Board of which he was a part was hardly interested in ensuring that employees were informed of their equally-important rights to REFRAIN under Communications Workers of America v. Beck, 487 U.S. 735 (1988). Certainly, the Board recent discovery of its "authority" coincides with unions becoming increasingly less effective in persuading workers of their worth, and apparently doesn't extend --- if one reads the rules --- to making sure that employees are aware of THOSE rights.
Posted by: James Young | Apr 15, 2012 5:31:06 PM
One element of Judge Norton's (the S.C. judge) decision that makes it seem result-oriented is his omission of any reference to the Fair Labor Standards Act in his discussion about the Board's authority to enact the notice requirement. While it is true that Congress has often included a notice posting requirement in statutes, the FLSA, which was passed around the same time as the NLRA, does not include explicit authority to require a notice, yet for 70 years the Secretary of Labor has required employers to post notices.
Posted by: Andrew Strom | Apr 16, 2012 6:08:15 AM
Yes, and I was also at the Board in the mid-90s when the Board was practically a Beck factory, cranking out decisions at the behest of Mr. Young's organization, making sure that Unions give employees extensive notice of their right to refrain from being members and from paying dues for non-representational expenses. So it is disingenuous of him at best to suggest that they are not getting notice of those rights.
Posted by: Dennis Walsh | Apr 16, 2012 6:45:32 AM
While Mr. Young's comments are a bit heavy-handed, I agree there is something unseemly about resorting in the first instance to an attack on the work of federal district court judges as being politically motivated. How about everyone pick up on Hirsh' suggestion, which perhaps inadvertently points out the problem with the Board's rule: "what IF Congress passed a law" requiring such a posting? In point of fact, they didn't -- not in 1935, 1947, 1959, 1974.... The comparison to other employment statutes, which have included express posting requirements, is most striking. For the Board to create a gap it can fill from this sustained silence is the kind of regulatory over-reach courts can and should restrain.
Posted by: Tim O'Connell | Apr 16, 2012 8:56:07 AM
Contrary to J. Young's contention, Board law regarding notice has been tilted decidedly in the direction he advocates, in that unions have long been required to give notice to employees of Beck rights, while Board law has not required employers to give employees any notice of their Section 7 rights. If the Board has the authority to require unions to give notice to employees, it must also have the authority to require employers to give a notice to employees of their rights.
Posted by: James A.W. Shaw | Apr 16, 2012 12:57:35 PM
And I think it is naive to suggest that the courts are not political. That suggestion, however, was not my main point. Rather it was that those who are attacking this modest rule are not really interested in reining in regulatory overreach. Their main interest is in keeping workers in the dark about their right to organize.
Posted by: Dennis Walsh | Apr 16, 2012 1:17:37 PM
What former Member Walsh fails to mention are the numerous successful mandamus petitions necessary to get the Board to issue decisions in cases which languished in the Board of which he was a Member for as long as seven years or more. "[P]ractically a Beck factory"? Hardly. Unless one's idea of "a Beck factory" is a Rube Goldberg construction with the sole goal of delay, diminishment, and degrading of employees' rights against forced-unionism schemes.
And as to employees being kept in the dark about their right to organize? It's a little laughable to contemplate that notion when there are dozens of large organizations with the purpose of organizing workers, and a notoriously pro-union NLRB bureaucracy committed to vindicating those rights.
Were it that former Member Walsh and the Board were equally enthusiastic about workers no less important Section 7 right to REFRAIN from collecctive activity.
Posted by: James Young | Apr 17, 2012 7:35:17 PM