At the end of this month, the National Labor Relations Board (NLRB) estimates that roughly six million small businesses across the country will spend around two hours, or $62.04, pinning up its new 11x17 poster entitled: “Employee Rights Under the National Labor Relations Act” to the walls of their workplace. That is, unless of course their workplace happens to be located in the state of South Carolina.
A. U.S. Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN (Dist. S.C. Apr. 13, 2012).
Last week Judge David Norton of the U.S. District Court for the District of South Carolina held that that Congress did not intend to give the NLRB the power to impose a universal notice-posting requirement on employers under the National Labor Relations Act (NLRA). See U.S. Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN (Dist. S.C. Apr. 13, 2012).
As a preliminary matter, the opinion points out that the NLRB “went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles.” After examining the statutory text and its legislative history, Judge Norton determined that the NLRB’s “notice-posting rule proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the Board’s reactive role under the Act,” adding, “[t]he Board cannot simply hang its hat on Congress’s silence, especially when the authority asserted here conflicts with the Board’s historic ‘quasi-judicial’ role in relation to employers under the Act.”
The court lends further support to its position by making the following observations:
At the outset, it is important to note that the NLRA does not require employers to post general notices of employee rights under the Act. Conversely, Congress has enacted or amended numerous other federal labor statutes to expressly require employers to post notices of employees’ statutory rights, as illustrated by the following chart:
Congress clearly knows how to include a notice-posting requirement in a federal labor statute when it so desires. “Where Congress has consistently made express its delegation of a particular power, its silence is strong evidence that it did not intend to grant the power.” Alcoa S.S. Co. v. Fed. Mar. Comm’n, 348 F.2d 756, 758 (D.C. Cir. 1965).
B. National Association of Manufacturers v. NLRB, Civil Action No. 11-1629 (ABJ) (Dist. D.C. Mar. 3, 2012) (mem. op.).
The court’s opinion in U.S. Chamber of Commerce v. NLRB stands in direct contradiction to National Association of Manufacturers v. NLRB, an opinion issued just last month by Judge Amy Jackson of the U.S. District Court for the District of Columbia, who held that the Board did not exceed its statutory authority in promulgating the notice-posting provision. Civil Action No. 11-1629 (ABJ) (Dist. D.C. Mar. 3, 2012) (mem. op.). Judge Jackson took the exact opposite approach in reaching this conclusion, finding that the absence of a limiting provision in the statutory text meant that the NLRB’s notice-posting rule was consistent with Congress’s intent. “Plaintiffs complain loudly about the lack of Board authority here,” the opinion reads, “but they fail to point to any limiting provision.”
C. Is this issue ripe for review?
At least one law professor thinks so. Professor Jeffrey Hirsch over at the Workplace Prof Blog writes, “Given that we won't be seeing legislation anytime soon, we'll just have to follow these cases as they go up on appeal. I won't actually predict this, but it wouldn't surprise me to see this in the Supreme Court eventually. Stay tuned.” You can read his full post here.