Friday, June 14, 2013
UPDATE: I was informed by someone at the Department of Labor that, since 2010, DOL requires federal contractors to post virtually the identical notice; indeed, the NLRB used the DOL rule as a model. Given the numebr of such contractors, this is nothing to sneeze at. But it would be nice if other employees also knew what their legal rights were.
The Fourth Circuit has now joined the D.C. Circuit in striking down the NLRB's notice posting rule, in Chamber of Commerce v. NLRB (a 3-0 decision, with 2 Obama nominees). Unlike the D.C. Circuit's broad, quasiiconstitutional decision, the Fourth Circuit limited its holding to whether the NLRA gave the NLRB power to require employers that have acted unlawfully to post informational notices. The court concluded that it did not.
The short version of the holding is that, unlike other statutes that gave agencies the power to require notices, the NLRA limited the NLRB to a reactive role. In other words, the Board cannot act unless it is acting on a ULP charge or representational matter; thus, it is unable to impose an independent duty on employers that have not otherwise violated the Act (like the D.C. Circuit, the Fourth Circuit did not strike down the NLRB's practice of requiring notices in case-by-case determinations as a ULP rememdy or prior to an election). I find this view of the NLRA too narrow and think the court was too quick to dismiss the Board's attempt to fit the rule under its power to "necessarily carry out" the provisions of the Act. That said, it is a far more defensible holding that the broad one from the D.C. Circuit. Unfortunately, the result is the same--assuming these cases stand, the NLRB won't be able to punish employers for not posting notices absent an amendment of the NLRB. Although I still think the NLRB should ask employers to voluntarily post notices (and sweeten the pot by changing the notice to add more language about the right not to join a union, whcih it should have had in the first place). Even if a small number of employers use it, it's better than none.
Hat Tip: Patrick Kavanagh