The Fourth Circuit's NLRB Smackdown

Flickr/Carlos Fernandez

Union members outside the Region 13 office of the National Labor Relations Board

At the heart of the latest feud between business groups and the National Labor Relations Board (NLRB) is an 11x17 sheet of paper that blandly recites the basics of a statute. But depending on whom you ask, the future of labor, the First Amendment, and freedom from state interference are at stake.

On Friday, the Fourth Circuit became the second federal appeals court to strike down the NLRB's requirement that employers hang a simple poster advising employees of their right to join a union—the D.C. Circuit Court of Appeals reached a similar ruling last month. The notice resembled the signs in so many break-rooms and copy nooks that advertise the minimum wage or anti-discrimination and health-and-safety laws. This particular poster, however, enraged groups opposed to organized labor and pulled the Labor Board into extensive litigation. The NLRB had intended the sign to educate workers—most of whom hardly know what a union is or what it means to organize for better conditions. But opponents saw the poster requirement as federal activism and argued both that the Labor Board lacks authority to take such a proactive measure and that the notice tramples upon employers' free speech.

The poster the National Labor Relations Board sought to require employees to display

The saga began in 2010, when the NLRB, a federal agency, proposed the “notice-posting” regulation. The rule would apply to the 6 million private employers covered by the National Labor Relations Act (NLRA)—the 1935 law governing the balance of power at work. A business’s failure to post the sign would constitute an “unfair labor practice” and serve as evidence of anti-union animus in any possible ensuing hearing. Given that employees were not notified of their rights, they would also be able to file a complaint with the Labor Board beyond the standard six-month statute of limitation. Like other workplace notices, the poster was intended to play both a symbolic and practical role.  “Very few of the workers we’ve worked with learn about their rights through postings. Of course there should be postings, but more important is enforcement,” said JoAnn Lum, director of the National Mobilization Against Sweatshops (NMASS), a worker-advocacy center.

After receiving more than 7,000 comments from the public, the Board finalized the poster rule. Shortly thereafter, several business groups—including the U.S. Chamber of Commerce, the National Association of Manufacturers, and the National Right to Work Legal Defense Foundation (NRTWLDF), which aims to “eliminate coercive union power and compulsory unionism abuses through strategic litigation”—filed separate but similar lawsuits arguing that the poster exceeded the Board’s statutory authority to craft rules.

For these entities, the poster represents a world they hope to avoid: Not merely one of unnecessary regulation or informed employees, but one in which the Labor Board feels empowered to take action. Some employers fear what it portends. “There's a list of horribles I can go through, but [the Board] could go so far as to require collective bargaining, to impose unions coming on to the company premises to do interviews, to do anything of that nature,” said an attorney for the Chamber of Commerce during a March 19 oral argument. Bill Messenger, a lawyer at the NRTWLDF, explained, “The Board was trying to become a rulemaking agency, which it never has been. It has always been an adjudicatory or quasi-judicial body."

In court, business entities made the additional, unprecedented claim that the Board's notice posting infringes on employers' First Amendment rights. The federal government should not force employers to speak at its behest, they argued. "It’s the employers’ private property. It’s the citizens’ private property. So where does the government get off commandeering their space?” said Glenn Taubman of the NRTWLDF. Employer groups have previously contested other posting requirements, such as those under the Fair Labor Standards Act, Title VII, and the Age Discrimination in Employment Act—but never before using a First Amendment argument.

Friday's Fourth Circuit ruling did not reach the issue of free speech; it condemned the posting requirement solely on the basis of the Board's lack of authority. However, the decision relies in part on the D.C. Circuit Court of Appeals' decision from last month, which invalidated the notice rule on First Amendment grounds, eager to protect employers from the poster's tyranny. The D.C. court's concurring opinion called the notice “aggressively prophylactic” and lampooned the NLRB for “impos[ing] on an employer a freestanding obligation to educate its employees on the fine points of labor relations law.”

With two appeals courts having struck down the regulation, the NLRB now has less than 90 days to petition the Supreme Court for review—or give up on the poster. Labor Board spokesman Hank Breitnecher would only tell me that “Board counsel are currently reviewing the Fourth Circuit’s decision, and the Board will make a decision on how to respond at a future time.” It's likely that the agency will first confer with the Obama administration to weigh the risks of a Supreme Court decision that could further hobble the Board, and potentially endanger other workplace signage.

The court decisions have publicly embarrassed a Labor Board intent on regaining relevance. “The NLRB’s promulgation of the requirement is part of a broader effort by the NLRB to enforce the Act on behalf of non-unionized workers,” said James Reif, partner at the labor law firm Gladstein, Reif and Meginniss, LLP. However, President Obama's attempts to revive the NLRB have largely been thwarted. The poster cases represent only the most recent defeat in a series of anti-NLRB decisions, including Noel Canning, the D.C. Circuit Court of Appeals decision that invalidated Obama's “recess” appointment of Board members. Due to the freeze of Obama appointees, the NLRB is unable to hear a number of cases, disappointing labor advocates still scarred by the Bush Board's pro-business orientation.

Attorneys representing employees fear not so much for the Labor Board as for the consciousness of solidarity in the workplace. "Employees have the right to join together even in the absence of a union. That includes talking about what your wage is, employer practices, and collectively petitioning your employer to change them. All of those are legally protected, and there is virtually no understanding," said Walter Kamiat, Associate General Counsel for the 2.1 million-member Service Employees International Union, which submitted an amicus brief to the Fourth Circuit.

Today, workers who know nothing of their right to organize have heard a lot about failing unions. There are news reports of abysmal unionization rates and public-sector workers striking over unfairly large pensions, not to mention our lasting stereotypes of corrupt, fat-cat union bosses and workplaces rendered lazy and inefficient by rigid union rules. Far less reported are the benefits that only organized workers have achieved: protection from arbitrary firing, transparent business operations, fair wages, sick days, and a sense of ownership and mutuality at work.  

It's no coincidence that the NLRB poster rule was contested around the time of the Wisconsin protests, when public employees' right to organize was under assault. The 2011 Madison protests fueled a larger national debate over the value of organized labor and collective bargaining—but nearly half the states are now classified as “right to work,” meaning that employees covered by hard-won union contracts are not obligated to pay dues, making future unionization nearly impossible.

Legally, the Fourth Circuit’s rebuke of the notice-posting requirement has no impact on workers' right to organize. But the ruling further constrains the Labor Board and undermines the awareness of what collective action can accomplish. Should this case reach the Supreme Court, the Board will emphasize what it’s argued all along: that knowledge is indeed “necessary to carry out” the aims of the National Labor Relations Act—and, implicitly, that what separates us from barbarous factories and offices are not just recorded laws, but organized workers, accountable employers, and government enforcement.

As Messenger, whose litigation group sued the NLRB, put it, “The notice posting is about a lot more than a notice. This case is a stalking horse.” On this point at least, organized labor does not disagree.

Reporting for this piece supported by the Ms. Foundation for Women Fellowship.

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