Are Employers Afraid of Employees Learning of their NLRA Rights?

The Latest Obstacle Against Posting Notices of NLRA Rights―Are
Employers Afraid Employees Might Learn Of Their Rights and Exercise Them?

By
Charles J. Morris
(c) 2012

The 2011 notice-posting rule of the National Labor Relations Board (NLRB or Board) continues to receive intense judicial scrutiny in the two federal court cases pending in Washington D.C. and Charleston, South Carolina.  In the D.C. case, National Association of Manufacturers  v. NLRB, Judge Amy Berman Jackson ruled in favor of the NLRB on the basic issue, approving issuance of the rule, but she struck down its enforcement procedures.  Those issues will be decided on appeal and cross appeal in the D.C. Court of Appeals where the case is now pending; that court just issued an injunction prohibiting application of the rule while its validity is being determined.  The latest ruling on the substantive issue occurred on April 13 in the South Carolina case, Chamber of Commerce v. NLRB, where Judge David Norton held that the Board had no authority to issue the rule; the Board has indicated that it will appeal. 

With court approval, I filed amicus-curiae briefs in both of those district court cases,  This was consistent with my continued interest in this important issue, which began nineteen years ago when I filed the rulemaking petition that initiated the Board’s issuance of the rule that is now being challenged.  I briefly noted this issue in my first blog on February 25, and I shall now focus attention on Judge Norton’s ruling in the Chamber of Commerce case in which he unequivocally held that the Board lacked authority under the National Labor Relations Act (NLRA) to issue a rule requiring all employers subject to the Board’s jurisdiction to post an NLRB notice in their workplaces that advises employees of their rights under the NLRA and how to obtain protection of those rights.  

In terms of settled law, Judge Norton’s Opinion is incredible.  In the unlikely event that it is allowed to stand, he will, by judicial fiat, have effectively repealed Section 6 of the NLRA, the provision that authorizes the Board to issue substantive rules in accordance with the Administrative Procedure Act (APA), and by logical implication it will have also limited the Board’s ability to issue any such broad rule by adjudication.  Disregarding basic Supreme Court tests regarding agency rulemaking, Judge Norton invented a new test that is so extreme that it would have denied the Board’s right to issue the important unit rule for acute hospital care employees which the Supreme Court approved in the American Hospital Association case with specific language that Judge Norton quoted but failed to heed, which is that

if Congress had intended to curtail in a particular area the broad rulemaking authority granted in § 6, we would have expected it to do so in language expressly describing an exception from that section or at least referring specifically to that section.

Ignoring those unambiguous words from the highest court, Judge Norton has ruled just the opposite.  Under his topical heading of “The Meaning of Silence,” he asserts that

Because the statute is “silent” as to the notice posting, the court must look beyond the plain language of the statute to determine whether Congress intended to delegate authority to the Board to fill this legislative silence.

Prior to that, however, his tortuous Opinion asserts that the “court must be guided by the plain meaning of the word ‘necessary’ [in Section 6] and the statutory framework that channels the Board’s powers away from proactive regulation of employers to a mechanism whereby the Board’s functions are triggered by an outside party.”  Then, as if with blinders on his eyes, he purports to examine the “Statutory Scheme,” but he fails to see the quasi-legislative nature of Section 6 (as well as the Supreme Court’s definition of that section), focusing instead on his limited view of what Congress intended, which is that the Board is to “be a reactive, quasi-judicial body with two primary functions,” i.e., deciding unfair-labor-practice cases and conducting representation elections.   He is correct about the Board’s quasi-judicial function, but he overlooks its proactive function, which Section 6 specifies.  The Board alone is given the authority to initiate and adopt substantive rules by “notice and comment” rulemaking, which was emphasized and clarified by Taft-Hartley’s legislative history of the APA feature, which the court’s Opinion fails to mention. 

Judge Norton departs from the common judicial definition of “necessary” by declaring that the present Board has confused a “ ‘necessary’ rule with one that is simply useful, although he concedes that “[t]he court  does not discredit the Board’s factual finding of a need for the notice-posting rule” and that “the court respects the Board’s decision on that issue,” nor does he dispute the Board’s finding with regard to employees’ knowledge of their rights under the NLRA, that “most employees are unaware of those rights.”  Yet, he says, these facts are not sufficient because the Board “defendants have not shown that the rule is ‘necessary’ to carry out any other provision of the Act.”  This is so, according to the Opinion,  because “the Act places no affirmative obligation on employers to post notices of employee rights or inform employees of those rights [therefore] the rule cannot be ‘necessary’ to carry out a nonexistent provision.” 

Of course such provision is not “nonexistent,” for it, or more properly they, are clearly contained and stated in Sections 1, 7, and 8(a)(1).  Section 6, by its clear text, applies to all provisions of the Act, i.e., it grants "authority...to make...such rules and regulations as may be necessary to carry out the provisions of this Act."  (Emphais added.) 

 Regarding Section 1, as Judge Norton inconsistently concedes that the “[notice-posting] ‘rule’ aids or ‘furthers’ the aspirational goals of Section 1 by notifying employees of their rights under Section 7.”  Indeed, Section 1 clearly declares that “the policy of the United States” is

encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

Regarding Section 7, this is the provision that represents the primary content of the notice to be  posted.  And regarding Section 8(a)(1), this is the provision which states that it is  “an unfair labor practice for an employer...to interfere with...employees in the exercise of the rights guaranteed in section 7.”  (Emphasis added.)

Of these three applicable provisions, Section 8(a)(1)―which Judge Norton never discusses―is the key provision directly involved in the Board’s determination that is expressed in the notice-posting rule, that a refusal to post notices informing employees of their Section 7 rights and how to protect those rights interferes with the exercise of those rights and that such a refusal can be the subject of a subsequent charge alleging violation of Section 8(a)(1) .  This is when the Board’s quasi-judicial function is “triggered by an outside party.”

This Section 8(a)(1) determination is similar to what occurred when the Board fashioned the Weingarten rule (through the traditional alternative-method of rulemaking through adjudication that was validated in NLRB v. Bell Aerospace Co.), which established that a refusal by an employer to allow the presence of a grievant’s union representative, when so requested by the grievant, violates Section 8(a)(1), which the Supreme Court fully approved.  The Weingarten rule, like the notice-posting rule in issue, requires the employer to do something before, and without reference to, the filing of an unfair labor practice charge, but failure to allow the representative’s presence―like the failure to post the notice in the Chamber of Commerce case― creates a potential unfair labor practice. 

The Supreme Court in Weingarten also defined the Board’s role in a manner especially applicable to the Board’s issuance of the notice-posting rule that Judge Norton was reviewing.  Here is that definition:

The use by an administrative agency of the evolutional approach is particularly fitting.  To hold that the Board’s earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking....

            The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board....It is the province of the Board, not the courts, to determine whether or not the “need” exists in light of changing industrial practices and the Board’s cumulative experience in dealing with labor -management relations.  For the board has the “special function of applying the general provisions of the Act to the complexities of industrial life”....

Although there are many errors in Judge Norton’s Order/Opinion in addition to the few briefly noted above, those are the ones that immediately stand out. 

I close this comment with four questions:  (1) Why are nonunion employers so afraid of employees learning about their basic rights under the National Labor Relations Act?  (2) Could it be that they are afraid that some of them might exercise those rights?  (3) And why is the U.S. Chamber of Commerce and the NAM, as well as other major non-union organizations, including the National Right to Work Foundation, now contending that the Board has no authority to issue this prophylactic notice-posting rule in view of the fact that they previously supported an earlier effort to have the Board issue a similar rule requiring unions to post a prophylactic notice relating to certain union unfair labor practices?  (4) Could that be a hypocritical flip-flop, depending on whose ox is being gored?


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