Tuesday, April 17, 2012
NLRB Notice Rule Delayed (Again)
And the saga continues . . . . The D.C. Circuit has just enjoined enforcement of the NLRB's new notice posting rule while the district court order largerly upholding the rule is pending on appeal. On the heels on a South Carolina district court's rejection of the rule, this hasn't been a good week for the NLRB. That said, Chairman Pearce announced the NLRB's intent to appeal the South Carolina ruling, as well as some of the D.C. court's holdings against the rule, so there's still a long way to go.
As for the injunction, it's not a total surprise given the politics now. That said, it didn't seem injunction-worthy to me. The harm to employers of merely posting a notice seems extremely low. And the NLRB, to me, is on very solid footing. As I've noted before, this is a very limited exercise of administrative authority and, under normal rules of administrative law, the NLRB should be in good shape. Of course, as readers are well aware, things related to the NLRB often don't follow the normal rules.
The panel was Tatel, Kavanagh, and Brown. Also, I've heard that my memory may not be correct (no surprise there) and that this panel may not be the same lineup that hears the merits.
One question for readers: does anyone know which judges issued the injunction? Assuming they're the ones who will hear the merits of the case (which, if my memory is correct, is the normal practice in that court), that would be relevant in predicting how this might turn out.
Hat Tip: Matt Bodie
-JH
https://lawprofessors.typepad.com/laborprof_blog/2012/04/nlrb-notice-rule-delayed-again.html
Comments
I wonder where the court in this case gets jurisdiction to hear this argument. The underlying Board decision makes no mention of any argument that the Board lacked authority to rule in the case, and Section 10(e) provides that "[no] objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." Perhaps they'll argue that these are the sort of extraordinary circumstances contemplated by Section 10(e)? It seems that the Center for Social Change, 358 NLRB No. 84 (March 29, 2012) would be a better vehicle for raising this challenge, as the Respondent argued the Board's lack of authority in that case.
Posted by: Michael Murphy | Apr 18, 2012 8:40:02 AM
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 12-5068 September Term 2011
1:11-cv-01629-ABJ
Filed On: April 17, 2012
National Association of Manufacturers, et al.,
Appellants
v.
National Labor Relations Board, et al.,
Appellees
BEFORE: Tatel, Brown, and Kavanaugh, Circuit Judges
O R D E R
Upon consideration of the emergency motion for injunction pending appeal and
for expedited consideration, the opposition thereto, and the reply; appellants’ Rule 28(j)
letter and the response thereto; and appellants’ second Rule 28(j) letter, it is
ORDERED that the emergency motion for injunction pending appeal be granted.
Appellant has satisfied the requirements for an injunction pending court review. See
Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); D.C. Circuit Handbook of
Practice and Internal Procedures 33 (2011); see also Chamber of Commerce v. NLRB,
No. 2:11-cv-02516-DCN, Order (D.S.C. Apr. 13, 2012) (holding National Labor
Relations Board lacks authority to promulgate the notice-posting rule).
We note that the Board postponed operation of the rule during the pendency of
the district court proceedings in order to give the district court an opportunity to consider
the legal merits before the rule took effect. That postponement is in some tension with
the Board’s current argument that the rule should take effect during the pendency of
this court’s proceedings before this court has an opportunity to similarly consider the
legal merits. We note also that the district court’s severability analysis left the posting
requirement in place but invalidated the primary enforcement mechanisms for violations
of the requirement. The Board has indicated that it may cross-appeal that aspect of the
district court’s decision. The uncertainty about enforcement counsels further in favor of
temporarily preserving the status quo while this court resolves all of the issues on the
merits. It is
FURTHER ORDERED that this appeal be expedited. The following briefing
schedule will apply:
Appellants’ Brief May 15, 2012
Appendix May 15, 2012
Appellees’ Brief June 15, 2012
Reply Brief June 29, 2012
The Clerk is directed to calendar this case for oral argument on an appropriate
date in September 2012.
Parties are strongly encouraged to hand deliver the paper copies of their briefs to
the Clerk's office on the date due. Filing by mail may delay the processing of the brief.
Additionally, counsel are reminded that if filing by mail, they must use a class of mail
that is at least as expeditious as first-class mail. See Fed. R. App. P. 25(a). All briefs
and appendices must contain the date that the case is scheduled for oral argument at
the top of the cover. See D.C. Cir. Rule 28(a)(8).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Timothy A. Ralls
Deputy Clerk
Posted by: Eli | Apr 18, 2012 9:46:45 AM
Mr. Murphy -
You might want to withdraw this comment. There were many, many comments challenging the Board's authority to promulgate this rule during the rulemaking, as the Board acknowledged:
"In response to the NPRM, a number of arguments have been made challenging the Board's statutory authority to promulgate the notice posting rule. As explained below, the Board does not find merit in any of these arguments." 76 FR 54011.
You might think the commenting parties (and Judge Norton) are wrong, but you can't say the argument wasn't made in the rule making process.
Posted by: Tim O'Connell | Apr 18, 2012 11:36:50 AM
Tim, I'm pretty sure that was just an inadvertent posting of a comment on the wrong thread (from the cite, it's pretty clear it was supposed to go on the recess-appointments article).
Put down the Rule 11 and slowly walk away...
Posted by: Zagarna | Apr 19, 2012 9:15:58 PM
Yes, my comment should have been posted to the recess-appointment article, which is where I submitted it.
Posted by: Michael Murphy | Apr 23, 2012 9:46:20 PM
Tatel, Brown, & Kavanaugh of the DC court of appeals...see decision
http://www.chamberlitigation.com/sites/default/files/cases/files/2011/NAM%20v.%20NLRB%20%28DC%20Circuit%20Injunction%20Order%29.pdf
Posted by: Taylor | Apr 18, 2012 7:46:04 AM