Friday, July 5, 2013

Morris's Comment on 4th Circuit Panel’s Notice Posting Decision in U.S. Chamber v. NLRB

CharliemorrisToday, we are happy to present a second piece of commentary by Charlie Morris (SMU Emeritus) on another federal appellate court decision, this time the Fourth Circuit Court of Appeals decision in U.S Chamber v. NLRB, striking down the NLRB's notice posting rules.  You can downloand the full commentary here and you can also find it as well on Charlie's own blog.

Here is a taste from the introduction of the commentary:

This decision, issued June 14, 2013, holds that in promulgating the NLRA rule requiring employers to post notices advising employees of their rights under the National Labor Relations Act “the Board exceeds its authority” pursuant to step one of the two-step rule of Chevron U.S.A., Inc. v. NRDC, Inc.,467 U.S. 837 (1984), that governs judicial review of an agency’s interpretation of its enabling statute.  That holding of an absence of statutory authorization is not only incorrect for a variety of valid reasons, it is directly contrary to the Supreme Court’s recent decision in City of Arlington v. FCC, Nos. 11-1545 & 11-1547, May 20, 2013, which the panel’s opinion (by Judge Duncan) acknowledged but―without explanation―chose not to follow. 

The decision in City of Arlington responded to the question of “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the agency’s statutory authority (that is, its jurisdiction).”  Justice Scalia’s majority opinion stressed that “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretation is a mirage” and noted that “there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” . . . .

Charlie again makes an exceedingly persuasive argument why the Fourth Circuit's decision in U.S. Chamber v. NLRB does not withstand closer scutiny.  In the meantime, we all await to see if the en banc 4th Circuit or the U.S. Supreme Court may become enmeshed in this notice posting/compelled employer speech debate.

PS

http://lawprofessors.typepad.com/laborprof_blog/2013/07/morriss-comment-on-4th-circuit-panels-notice-posting-decision-in-us-chamber-v-nlrb-.html

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Comments

Charlie makes the very important point that the Chamber of Commerce case does not seem to be consistent with the Supreme Court's holding in City of Arlington v. FCC: that a court has to defer, under Chevron, to an agency's reasonable interpretation of an ambiguous statutory grant of regulatory authority. The DC Circuit's majority decision invalidating the same notice-posting rule (NAM v. NLRB) did not deal with the Chevron issue, but seemed to be making a Chevron determination without saying so (as discussed in a guest post I made a couple of weeks ago). At this point, I think that an argument can be made that the 4th and DC Circuits not only made mistakes at what should have been step one of Chevron, but that they also should have made an accurate "step zero" determination first -- that Congress gave the NLRB broad rulemaking authority in this area -- and then have proceeded onto step one. At step one, given the statutory silence on notice-posting, the statute is ambiguous, and per City of Arlington v. FCC, a court should defer to the agency's reasonable interpretation of the scope of its authority.

Perhaps an en banc review will, as Charlie hopes, yield the correct result.

Posted by: Lise Gelernter | Jul 8, 2013 9:35:52 AM

These NLRB poster cases strongly smell of results-oriented jurisprudence. The flimsy nature of the analysis and broad application to NLRB powers suggests the courts are not just striking down the notice poster but setting up the opportunity for a long term, systematic judicial dismantling of the NLRB. It is unsurprising within the larger context of the social and legislative anti-union push by the larger business community to roll back employee rights and union rights in particular.

Posted by: Adam Kielich | Jul 14, 2013 9:57:20 AM

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