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

Comment on 4^th Circuit Panel’s Decision in U.S. Chamber v. NLRB

by Charles J. Morris

© 2013 Charles J. Morris

 

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.”  The Court concluded that these alleged distinctions

can all be reframed as questions about the scope of agencies’ regulatory jurisdiction―and they are all questions to which the Chevron framework applies....Once those labels are sheared away it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.

Among other things, the Supreme Court was repeating the Chevron requirement that

If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.  [But] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Chevron further states that when the agency makes rules to fill the gap, “[s]uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute."  It is uncontested in this case that the notice-posting rule conforms to the declared policy of the statute and is not arbitrary, capricious, or manifestly contrary to the statute.  This is a garden-variety Chevron step-two case notwithstanding the obfuscation created by the Duncan opinion.

Clearly the NLRA is silent as to the specific issue, which is the promulgation of the notice-posting rule in question, therefore step two clearly applies, which means giving deference to the Board’s reasonable interpretation of its authority―authority which was expressly granted by Section 6 of the Act.  Ignoring the aforesaid Chevron requirements for step one, Judge Duncan’s opinion sought to use Chevron’s reference to “employing traditional tools of statutory construction” in an attempt to justify her conclusion that the rule was not authorized, hence a step one situation, but her opinion overlooked that this reference limited such coverage to Congressional “intention on the precise question in issue” only, i.e. to the specific notice-posting requirement.  Instead, her opinion, which evidently was based on a blinders view of the statutory scheme, asserted that “there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition” and that “the Board is a reactive entity,” hence not intended to “allow proactive rulemaking.”   Even if that observation were correct―which it is not, for the Board has a recognized and long-established proactive function―it would not satisfy the Chevron or City of Arlington requirement of finding specificity as to the action in issue. 

Indeed, the Board has both adjudicatory (i.e. quasi-judicial) and rulemaking (i.e. quasi-legislative) functions.  It has issued innumerable proactive prophylactic rules regarding employer conduct.  For example:  The rule requiring employers to provide unions with the names and addresses of eligible voters in representative elections, Excelsior Underwear, Inc., 156 NLRB 1236 (1966), and NLRB v. Wyman-Gordon, 394 U.S. 759 (1969); the rule prohibiting employers from enforcing no-solicitation rules on company property in non-work areas on non-work time, violation of which constitutes Section 8(a)(1) “interference,” Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); the rule requiring employers in union-recognized workplaces to allow the presence of a union representative during an investigatory-disciplinary hearing when requested by the interviewee, otherwise Section 8(a)(1) is violated,  NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975); the rule prohibiting an employer from not allowing employees to discussing wages among themselves, which would constitute a Section 8(a)(1) “interference,” Jeannette Corp. v. NLRB, 532 F.2d 916 (3^rd Cir. 1976); and the rule prohibiting employers from discharging employees for concertedly quitting work to protest working conditions, which would violate Section 8(a)(1), NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).

Most of the Board’s rulemaking has been achieved through the process of adjudication, which the Supreme Court has recognized to be a choice the Board usually may make notwithstanding the Court’s expressed preference for Section 6 rulemaking, NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-293 (1974).  As the Court stated in that case, absent special circumstances the “function of filling in the interstices of [legislation] should be performed as much as possible, through [Section 6] quasi-legislative promulgation of rules to be applied in the future.”  That Supreme Court preference was ignored by Duncan’s opinion, which in effect deleted Section 6 from the Act, or at least denied it any substantive functions.  Likewise unmentioned was the Supreme Court’s broad and clear description of the Board’s rulemaking authority in American Hospital Association v. NLRB (499 U.S. 606,613 (1991), which declared that

As a matter of statutory drafting, 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 the section.

Despite the panel’s efforts to limit the impact of that case, the above definitive Supreme Court statement of the authority conferred by Section 6 was never referred to or discussed in the Duncan opinion.

 

The key questions in this case closely resemble what the Board and Supreme Court confronted in NLRB v. City Disposal systems, Inc., 465 U.S. 822 (1984), where the Court upheld the Board’s definition of  “concerted activity” in Section 7 to include an employee’s assertion of a right grounded in a  collective-bargaining agreement.  In City of Arlington the Court cited City Disposal Systems for the proposition that “Chevron applies to cases in which an agency adopts a construction of a jurisdictional provision of a statute it administers.”

Section 6’s authorization of the Board’s substantive rulemaking, which was overtly reconfirmed by Taft-Hartley’s legislative history, Legislative History of the Labor-Management Relations Act, 1947 (1974) at 49, 99, 109, 226, 317, 330, 336, 366, 426, and House Conference Report at 542, which the Duncan opinion chose to ignore, fully supports the Board’s issuance of the notice-posting rule which, for proper reasons was deemed “necessary” within the meaning of Section 7.  Likewise, the broad language of Section 6, which covers all “provisions” of the Act, not just the reactive ones designated by the Chamber and agreed to by the Duncan opinion, also covers Sections 1, 7, and 8(a)(1).

The decision in Chamber v. NLRB is thus ripe for reversal, hopefully by its own court pursuant to en banc review.                   

 

NLRB Employee-Rights Posters and Employers' Free Speech

NLRB Employee-Rights Posters and Employers’ Free Speech

by

Charles J. Morris

Professor  Emertus, Dedman School of Law
Southern Methodist University

© Charles J. Morris 2013

 

A recent decision by a panel of  judges of the District of Columbia Circuit Court of Appeals in National Association of Manufacturers (NAM) v. NLRB,[1] in an Opinion by Judge A. Raymond Randolph, holds that a rule issued by the National Labor Relations Board (NLRB or Board) on August 30, 2011, that requires employers to display a poster that advises employees of their rights under the National Labor Relations Act (NLRA or Act)[2] is unconstitutional because it violates the First Amendment free-speech rights of employers.  The New York Times’ characterization of that decision as “outrageous”[3] expresses the natural reaction to a ruling that uses the cover of free speech to suppress free speech.  Judge Randolph’s decision raises the critical question of whether by final judicial determination this notice-posting rule will be deemed a violation of the Constitution, for if so, most governmentally required notice postings (both federal and state) that are commonly displayed in millions of American workplaces will no longer be mandatory.  Based on established case law, the final answer to that question should be that the rule does not violate the First Amendment; thus the existing familiar notice- postings will safely continue.  However, before examining that established law, a background item is worthy of note. 

Although the employer plaintiffs in this D.C. Appeals case, the NAM and the National Right to Work Legal Defense and Education Foundation, contend that the Board lacks statutory jurisdiction to issue a rule that requires employers to display posters that inform their employees about their rights under the Act, nlrb records reveal that this contention is hypocritical and inconsistent with the position they and other employer organizations, including the U.S. Chamber of Commerce, took in 1992 and 1993,[4] which was that Section 6 of the Act[5] provided the Board with ample jurisdiction to require unions to inform union-represented employees by mail or workplace postings about their rights “to join or refrain from joining a union and the financial obligation incident to each status.”[6]  These same organizations have now reversed that position, arguing that Section 6 does not grant the Board statutory jurisdiction to issue that type of rule―the only significant difference now being that the current rule requires employers rather than unions to post the notices.

Without claiming any prescience as to the ultimate applicability of statutory jurisdiction in this case―for as a result of the Supreme Court’s recent decision in City of Arlington v. F.C.C.[7] it is now virtually certain that Section 6 grants the Board unassailable statutory jurisdiction to issue the rule in question―Judge Randolph chose not to base his decision on an alleged absence of Section 6 statutory jurisdiction;[8] instead, he predicated that decision on the novel premise that the Board lacks jurisdiction to issue the rule because it violates the First Amendment of the U.S. Constitution.  He reaches this surprising conclusion by way of a unique free-speech construction of Section 8(c) of the Act, a provision that reads as follows:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

Judge Randolph does not question the even-handedness and fairness of the poster’s portrayal of the statutory rights. Indeed his Opinion acknowledges that

The poster informs employees of their right to form, join, or assist a union; to bargain collectively through representatives of their choosing; to discuss wages, benefits, and other terms and conditions of employment with fellow employees or a union; to take action to improve working conditions; to strike and picket; or to choose not to engage in any of  these activities.[9]

Yet, notwithstanding the neutrality of that message, he finds that because the employer plaintiffs “object to the message the government has ordered them to publish on their premises”[10] the rule violates the First Amendment and  Section 8(c).  He asserts that “[a]lthough § 8(c) precludes the Board from finding noncoercive speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both”[11] because, notwithstanding that “[i]t is obviously correct that the poster contains the Board’s speech,”[12] employers are required to “disseminate” that poster “upon pain of being held to have committed an unfair labor practice”[13] for the “language of § 8(c) covers [the] ‘dissemination’ of ‘any views, arguments, or opinions.’”[14]  He therefore declares that inasmuch as “[t]he right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,”[15] and because refusal to post the notice, i.e., the Board’s speech, constitutes an unfair labor practice, that right to refuse is protected by the First Amendment.[16]

 

Judge Randolph arrives at that unqualified conclusion without pausing to confront the established standards spelled out in United States v. O’Brien,’[17] the leading case applicable to governmental regulations that might encroach upon First Amendment free speech, where the Supreme Court emphasized that such a regulation  

is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.[18]

Instead of examining the Board’s rule in relation to the O’Brien factors, Judge Randolph relies on two wholly inapplicable groups of cases, including three pre-O’Brien cases.  First, where the governmental interest was deemed insufficient to override constitutional free speech, Wooley v. Maynard[19] (a New Hampshire law that required motorists to display the state motto “Live Free or Die” on their license plates), and West Virginia State Board of Education v. Barnette[20] (a state law that required school children to recite the Pledge of Allegiance and salute the flag).  Second, where the means chosen to accomplish a legitimate governmental objective was deemed unconstitutional because it was unduly burdensome and not narrowly tailored, Riley v. National Federation of the Blind”[21] (a North Carolina law that was intended to prevent fraud by donation-solicitors who were required to disclose to potential donors the percentage of donated revenue retained by the soliciting charity, i.e., the unwanted speech; it also purported to define by a complex formula the reasonable fee that fundraisers could charge, and it required fundraisers to obtain licenses before soliciting). 

If Judge Randolph had relied instead on the straight-forward tests in O’Brien and  their application in its progeny cases,[22] which are specifically pertinent to governmental regulations that reasonably restrict some element of free speech in order to rationally serve an important public interest, he would surely have recognized that all of the O’Brien requirements are fully satisfied by the Board’s notice-posting rule, which therefore does not violate the First Amendment.

Turner Broadcasting System, Inc. v. F.C.C.[23] is an O’Brien progeny case directly in point.  The issue there was whether provisions in the Cable Television Consumer Protection and Competition Act of 1992, which requires cable television companies to dedicate some of their channels to broadcasting programs of local television stations (known as must-carry provisions) violated the First Amendment rights of cable television companies who were thus required―like the employers under the Board’s notice-posting rule―to publish messages against their will.  The Supreme Court concluded that because “the burden imposed by must-carry is congruent to the benefits it affords [and] is narrowly tailored to preserve a multiplicity of broadcast stations for...households without cable,”[24] which was an acceptable Congressional objective, the “must-carry” provisions did not violate of the First Amendment.  As further demonstration that “must-carry” met the O’Brien standards, the Court highlighted some of the benchmarks that it had articulated in two other progeny cases.[25]  In Ward v. Rock Against Racism[26] it stressed that “’the essence of narrow tailoring” is “focusing on the evils the [Government] seeks to eliminate...[without] significantly restricting a substantial quantity of speech that does not create the same evils.”  And in Clark v. Community for Creative Non-Violence[27] it noted that “[n]one of [the regulation’s] provisions appear unrelated to the ends that it was designed to serve.”  By these standards, the NLRB’s notice-posting rule clearly focuses on the evils of employees’ widespread lack of knowledge about their rights under the NLRA and how they can be enforced, which the Board had established without any contradiction.[28] As the district court held, the NLRB’s

dissemination of information about employee rights is well within its bailiwick.  The Board is not attempting to regulate entities or individuals other than those that Congress expressly authorized it to regulate [and] the stated purpose of the rule is directly related to the policy behind the NLRA. [29]  

And, like the regulation approved in Community for Creative Non-Violence, the Board’s rule is closely related to the “ends it was designed to serve,” i.e., to inform employees of their statutory rights, and it does not significantly restrict anyone’s speech.  The poster is unmistakably the voice of the NLRB, a governmental agency and not the voice of the employer, who remains free to post anything anywhere in the workplace and to tell anything to the employees, singly or in captive-audience groups, provided only that such expressions contain no “threat of reprisal or force or promise of benefit.”

 

Established constitutional law thus confirms that the Board’s notice-posting rule does not violate the employers’ First Amendment rights for―in the words of the Supreme Court in another O’Brien progeny case― this rule was “designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.”[30]  Accordingly, Judge Randolph’s contrary thesis cannot survive.

 1] National Ass’n of Mfgrs v. NLRB, No. 12-5068 & No. 12-5138 (4^th Cir. May 7, 2013) (hereinafter slip op.).  And see note 8 infra.

[2] 76 Fed. Reg. 54,006.

[3] NYT editorial, May 10, 2013.

[4] See 29 C.F.R. Part 103.40(e)&(f), Union Dues Regulation (9/22/1992).  For full documentation of these positions, see district court’s opinion in National Ass’n of Mfgrs v. NLRB, 846 Supp.2d 34, 48 n.9 (2012). 

[5] § 6 (29 U.S.C. § 156) : “The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act.”

[6] 29 C.F.R. § 102.124 & 5 U.S.C. (e).  That one-sided proposal prompted the author of this article to file in 1993 an “interested person’s” petition proposing that the union-notice proposed rule be replaced by a balanced rule requiring posting of a general notice that would advise employees of all their basic rights under the NLRB.  That petition remained inactive until 2010 when the Board responded by considering and issuing the notice-posting rule in 2011 that the D.C. Circuit Court of Appeals panel held unconstitutional.

[7] Nos. 11-1545 and 1547 (U.S. S.Ct, May 20, 2013).

[8] However, the other members of the panel, Judges Karen LeCraft Henderson and Janice Rogers Brown, although they concurred with Judge Randolph’s Opinion, added that they would also find that the “NLRA―and Section 6 in particular” does not authorize issuance of the rule.

[9] Supra note 1, slip op., at 4.  

[10] Id., at 19.

[11] Id., at 14.

[12] Id., at 15.

[13] Id., at 17.

[14] Id., at 16.  Emphasis added.

[15] Id.

[16] Citing  Pac. Gas & Electric Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 11 (1986) (“all speech inherently involves choices of what to say and what to leave unsaid.”  Emphasis in original.)

[17] 391 U.S. 367 (1968).  See also, e.g. the following of its progeny cases:

[18] Id., at 377.  Emphasis in original.

[19]430 U.S. 705 (1977).

[20] 319 U.S. 644 (1943).

[21] Riley v. National Federation of the Blind, 487 U.S. 781, 798 (1988).

[22] E.g., Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180 (1997); Ward v. Rock Against Racism, 491 U.S. 781 (1989); Renton v. Playtime Theatres, 475 U.S. 41 (1986); United States v. Albertini, 472 U.S. 675 1985); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984). 

 

[23] Note 26, supra.

[24] Id., at 215-216.

[25] Id.

[26] Note 26, supra at 799 n. 7.

[27] Note 26, supra at 297.

[28] See district court’s opinion in National Ass’n of Mfgrs v. NLRB, 846 F.Supp.2d 34, 51 (2012).

[29] Id., at 45. § 1 of the Act declares the policy of the United States to be the encouragement of collective bargaining and the protection of workers exercising full freedom of association through representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

[30] Renton v. Playtime Theatres, supra note     at 50).