Tuesday, May 7, 2013
Here we go again. You know the saying, "Bad facts makes bad law"--well, for the D.C. Circuit you might replace "bad facts" with "NLRB." I know from my time as an NLRB appellate attorney that a lot of circuit judges don't like the NLRA, but much of the D.C. Circuit seems to go into a frenzy when presented with an important NLRB issue. Recently, we saw the court strike down over 150 years of recess appointment practice in Noel Canning; today, the court expands the First Amendment far beyond what I've seen (in an admittedly narrow area) and strike down the NLRB's long practice of equitable tolling--all in a case involving something as common as a government employee right's notice. The case is NAM v. NLRB (the judges were Randolph, Henderson, and Brown--another reminder that the White House's inability to get nominees on teh D.C. Circuit has a real impact).
Although the court starts with Section 8(c), which prevents the NLRB from using non-threatening speech as evidence of a ULP, the bulk of its holding makes an argument that First Amendment prohibits the government for telling companies to disseminate government information (Judges Henderson and Brown would also hold that Section 6 does not allow the Board to issue prohphylatic rules either). Indeed, based on my quick reading of the opinion, it seems to cast doubt on the ability of the government to require notice postings in most instances, or at least punish any employer for refusing to post notices (it did hold that its opinion didn't oerturn pre-election notice posting requirements, which don't implicate Section 8(c)). In other words, we may see challenges to FLSA, OSHA, and EEOC notices--although I'm guessing that most employers are used to these and don't get as worked up about informing their employees about the right to be paid the minimum wage, not to die at work, and not be discriminated against than they do about informing employees about their right to unionize.
In spite of the broad First Amendment language, the court ultimately holds that the central problem is that the NLRB cannot issue a ULP finding for a failure to post a notice or use that failure as evidence in a ULP case. One might think that the Board would still be able to "require" the notice postings--but be unable to punish an employer for not following the requirement. However, the court killed that option for the time being by refusing to sever the notice requirement from the enforcement provisions because the Board had earlier decided not to issue a voluntary rule. That seems like a weak reed to knock out the entire rule, especially given that the court left open the question whether the NLRB had authority to issue an enforcement-less notice rule. If the Board even gets its quorum question settled, it may try to issue the notice requirement while avoiding the enforcement problems. Issuing a notice requirement without a way to enforce it perhaps seems a wasted effort, but I think there is some force in a government requirement, even one without a penalty. On the other hand, the NLRB may be exhausted by its attempt to merely inform employees of their rights and just give up. I'll also note that the court stressed the Board's failure to list employees' right to decertify in the notice, which--as I've noted before--I thought was bad judgment. That wouldn't have affected the outcome, but it didn't help.
Of perhaps even greater significance was the court's rejection of the NLRB's alternate means of enforcing the rule: by tolling the statute of limitations for a failure to post. But, the court didn't just reject tolling for notice violations. Instead, it when much farther by rejecting the Boad's use of equitable tolling in general.
In many ways, this is the same thing we've seen for a long time from circuit court and the D.C. Circuit in particular. But I do think that this case and Noel Canning illustrates a new level of activism. The court is reaching far beyond what it needs to strike down a NLRB rule without much thought (or at least much care) about the broader ramifications. For instance, the court dismisses the Board's reliance on a decision upholding a Bush-era rule requiring posting of notice of workers' right not to join a union or the right to make dues objections because the challenge to that case did not have a free-standing First Amendment claim. Fair enough, perhaps, but the court didn't seem to grasp the signficance that this ruling might cut different ways. For instance, once unions start attacking restrictions on its speech (seriously, what's been taking so long?!), will the D.C. Circuit be just as committed to its construction of the First Amendment? We'll have to see . . . .
Hat Tip: Patrick Kavanagh