Friday, April 13, 2012
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