Friday, July 5, 2013
Today, 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.