United States: Another Court Holds That The NLRB Lacked Authority To Require Employers To Post A Notice Informing Employees Of Their Rights Under The NLRA

On June 14, 2013, the Fourth Circuit Court of Appeals joined the D.C. Circuit Court of Appeals in invalidating the NLRB's rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA or the Act). In Chamber of Commerce of the United States v. National Labor Relations Board, the Fourth Circuit held that the National Labor Relations Board exceeded its authority by promulgating the posting rule. The three-judge panel's decision serves as a significant rebuke to the Board's attempt at proactive rulemaking.

On August 30, 2011, the NLRB promulgated a rule that would require all employers subject to the NLRA "to post notice to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures." Entitled "Notification of Employee Rights Under the National Labor Relations Act," the rule subjected a non-compliant employer to: (1) a finding that it committed an unfair labor practice; (2) a tolling of the statute of limitations for the filing of unfair labor practice charges; and (3) a finding of anti-union animus that could weigh against the employer in any subsequent Board proceedings. The text of the notice to employees stated:

The [NLRA] guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the [NLRB], the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

The rule was unusual for several reasons. First, the NLRB has rarely engaged in rulemaking during its 77-year history. Second, although the Board requires employers found to have committed unfair labor practices to post remedial notices informing employees of their rights under the Act, this was the first time it promulgated a proactive notice-posting rule affecting all employers subject to the NLRA (whether unionized or not). The Board's rationale for implementing the notice-posting rule was that "American workers are largely ignorant of their rights under the NLRA, and this ignorance stands as an obstacle to the effective exercise of such rights." The Board offered several explanations for this lack of knowledge: "the overwhelming majority of private sector employees are not represented by unions;" "immigrants, who comprise an increasing proportion of the nation's work force (sic), are unlikely to be familiar with their workplace rights;" and "high school students, many of whom are about to enter the labor force, are uninformed about labor laws and labor relations." The Board attributed this lack of awareness of rights to the absence of any requirement that workers be informed of them.

During the public comment period that followed promulgation of the rule, the Board received over 7,000 submissions. The majority of the submissions opposed the rule in whole or in part. But before it went into effect, the U.S. Chamber of Commerce ("Chamber") filed a lawsuit in federal court in the District of South Carolina, seeking an injunction. The parties filed cross motions for summary judgment, and the district court ruled in the Chamber's favor. The district court held that the NLRB's rulemaking function, as expressly stated in the NLRA, only empowers the Board to carry out its statutorily defined remedial roles in addressing unfair labor practice charges and conducting representation elections. The NLRB appealed the district court's decision.

The Fourth Circuit's Decision

As an initial matter, the court was presented with the parties' competing statements of the legal question at hand. The Board and Chamber jockeyed to define the critical framework for the appellate court's analysis, with the Board contending that the relevant question was whether Congress intended to withhold authority to issue the challenged rule, and the Chamber arguing that the question was whether Congress intended to grant the authority. The court sided with the Chamber and turned its analysis to whether Section 6, which confers the general rulemaking power on the Board, requires that some other section of the NLRA provides explicit or implicit authority to issue the notice-posting rule.

Section 6 of the Act grants the Board authority to issue rules that are "necessary to carry out" the provisions of the Act. The Board contended that the term "necessary" is inherently ambiguous. But the court found that "the substantive provisions of the Act make clear that the Board is a reactive entity," and that the Act does not demonstrate congressional intent to allow "proactive rulemaking" under Section 6.

In reaching its decision, the court also considered the structure of the NLRA. The court found an absence of authority to promulgate a notice-posting rule in the statute and reasoned that such a rule was not "necessary to carry out" the Board's responsibilities (stated elsewhere in the Act) to conduct representation elections and adjudicate unfair labor practice charges. The court rejected the Board's circular argument that because its enforcement functions are reactive, the rule was necessary to proactively apprise employees of their rights. The court wrote: "regardless of how laudable the NLRB's goal of educating workers may be, there is nothing in the text of the NLRA to suggest the burden of filling the knowledge gap should fall on the employer's shoulders."

Finally, the court reviewed both the NLRA's legislative history and "the history of evolving congressional regulation in the area (of labor legislation)." In considering the Act's history, the court noted that Congress reviewed and rejected a different proposed notice provision in the NLRA that would have required any employer that was a party to a contract that conflicted with the NLRA to notify its employees of the violation. This, the court found, reflected Congress's awareness of its option to authorize the Board to mandate that employers provide notices and its decision to not grant such authority. The court also contrasted the NLRA with other federal labor statutes, highlighting that other agencies that promulgated notice-posting requirements did so pursuant to proactive mandates, including the Equal Employment Opportunity Commission (EEOC), the Occupational Safety & Health Administration (OSHA), and the Department of Labor (DOL). As Judge Duncan wrote, "Congress's continued exclusion of a notice-posting requirement from the NLRA, concomitant with its granting of such authority to other agencies, can fairly be considered deliberate."

The Fourth Circuit's decision follows a prior decision by the D.C. Circuit decision enjoining the NLRB's rule. Notably, the Fourth Circuit went even further than the D.C. Circuit, which ruled against the NLRB in a suit brought by the National Association of Manufacturers on the basis that the notice-posting rule violates section 8(c), which prohibits the NLRB from finding employer speech that is not coercive to be an unfair labor practice or evidence of such a practice. Indeed, the Fourth Circuit expressly held that the NLRA unambiguously does not grant authority to the NLRB to promulgate the challenged notice-posting rule.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions