Comments to the NLRB on Proposed Union Notification Requirements

We appreciate the opportunity to comment on the National Labor Relations Board’s (NLRB) proposed regulation, titled Proposed Rules Governing Notification of Employee Rights Under the National Labor Relations Act. The Board has specifically invited comments on its authority to implement this new rule. We believe the Board lacks legislative authority to promulgate this regulation, and by excluding certain right-to-work provisions of the National Labor Relations Act (NLRA), the rule violates the Administrative Procedure Act (APA). Furthermore, we believe this regulation is motivated more by politics and the generation-old writings of retired law professors than sound labor policy. What Congress could not do with the Employee Free Choice Act in the 110th and 111th Congress, the NLRB will unilaterally attempt to implement. In sum, we agree with Commissioner Brian E. Hayes that Section 6 of the NRLA does not authorize this action, violating Section 706 of the APA.

Politics Motivated Original Authors of Proposed Regulation:

The proposed rule admits that the genesis of the regulation originated from two law review articles published in 1993 and 1995. We actually agree with Professors Peter DeChiara and Charles Morris that the political environment necessitates NLRB action, but that action still lacks legal authority.

When Professor DeChiara, cited frequently by the proposed rule, wrote his original article in 1995, he bemoaned the changing political guard on Capitol Hill. Without strong pro-union majorities in Congress, amending the NLRA to include new workplace posting requirements would be unlikely.

As Professor Peter DeChiara wrote in 1995, “Amendment of the Act [NLRA] itself would be exceedingly difficult, given the resistance in Congress to legislative reform that would empower employees. Therefore, an expanded notice requirement would likely have to come not from Congress but from the Board itself.” The resistance in Congress of which Professor DeChiara spoke came from new Republican majorities in Congress. Instead of lobbying Congress to amend the NLRA and require the posting of unionization rights, Professor DeChiara proposed a more convenient regulatory approach.

The 2011 political environment is similar to the one that motivated Professor DeChiara to push for new regulation in 1995. A new Republican Congress appears unwilling to amend the NLRA, but a Democratic President and a Democratic-controlled NLRB has some power to implement new rules. This might make for good politics but we do not believe it is good policy, or even authorized by current law.

Finally, Professor Charles Morris, the father of union notification requirements, echoed his disappointment with congressional action. He wrote, “So with the possible exception of the Striker Replacement bill, the only changes in labor relations law and practice that we are likely to see in the near future are those changes which will emanate from the new Labor Board and the new General Counsel, not from Congress.” Though Professor Morris practically invented the idea of forcing employers to post unionization rights, he never once cited legal authority that would allow the NLRB to act.

Law Lacks Legislative Authorization:

The proposed rule goes to great lengths to illustrate that the NLRA “is almost unique among major Federal labor laws in not including an express statutory provision requiring employers routinely to post notices at their workplaces….” However, it is the law’s uniqueness that demands a Congressional, not regulatory, approach to resolving the discrepancy. All of the major workplace notices have explicit language for posting requirements, and so should union notices if the regulation is to withstand judicial scrutiny.

Here are examples of the explicit posting notices required in legislation:

• Age Discrimination in Employment Act, “Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Equal Employment Opportunity Commission setting forth information as the Commission deems appropriate to effectuate the purposes of this chapter.”
• Employee Polygraph Protection Act, “Each employer shall post and maintain such notice in conspicuous places on its premises where notices to employees and applicants to employment are customarily posted.”
• Family Medical Leave Act, “Each employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted.”
• Civil Rights Act of 1964, “The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.”
• Occupational Safety and Health Act, “The Secretary shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this chapter, including the provisions of applicable standards.”
• Americans with Disabilities Act, “Every employer … covered under this title shall post notices in an accessible format to applicants, employers, and Members describing the applicable provisions of this Act…”
• Uniformed Service Employment and Reemployment Rights Act, “Each employer shall provide to persons entitled to rights and benefits under this chapter a notice of rights, benefits, and obligations, of such persons and such employers under this chapter.”
• Railway Labor Act, “Every carrier shall notify its employees by printed notices in such form and posted at such times and places and shall be specified by the Mediation Board….”
• Migrant and Seasonal Agricultural Workers Protection Act, “Each farm labor contractor, agricultural employer, and agricultural association which employs any migrant agricultural worker shall, at the place of employment, post in a conspicuous place a poster provided by the Secretary setting forth the rights and protections afforded such workers under this Act.”

The Board’s admitted lack of statutory authorization should be enough to address whether the NLRB has the appropriate authority to unilaterally enact this regulation. Congress has been explicit in the past when employers are required to post notices, and no prior NLRB action has forced employers to unwillingly communicate to their employees without specific legislation. This proposed regulation is truly unprecedented.

If the NLRB is successful in its implementation, it could usher in a host of politically convenient notice and posting requirements. For example, the Affordable Care Act contains a requirement that most employers provide their employees with health insurance. Under the NLRB’s broad Section 6 legal rationale, nothing would stop the Board from implementing a new posting policy for health insurance. Without a necessary legislative tether we worry the NLRB could impose new regulations based on political calculations, not law or sound public policy.

Section 6 of the NLRA Does Not Authorize This Action:

The Board’s only justification for the new posting requirement is found in Section 6 of the NLRA, “The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [5 U.S.C. 553], such rules and regulations as may be necessary to carry out the provisions of this Act.” We believe this broad grant of authority does not permit the Board to force employers to post union organization rights. (It is not too surprising that Section 6 is the same supposed grant of authority that Professor DeChiara cited in 1995.)

However, citing Section 6 does not necessarily grant the NLRB with the power to issue this regulation. The U.S. Supreme Court has circumscribed NLRB rulemaking excess in the past: “The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.”

Here, the policy decision to require employers to post notices of federal rights has been made explicit by several pieces of legislation, but not in this case. Congress made clear in at least nine cases that employers should post certain employee rights, but silence in this particular case should give pause to the argument that the NLRB has absolute power to require the posting of union notification rights.

The authority of the Board to act here should look to congressional intent and specific legislative language. Since no piece of legislation has authorized the proposed rule, reliance under Section 6 alone is suspect.

For example, the U.S. Court of Appeals for the Ninth Circuit has recognized that the NLRB cannot act to strengthen its powers beyond its grant of authority from Congress. As the Ninth Circuit held, “[T]he Board may adopt rules and regulations to carry out its functions in a manner consistent with the fulfillment of the purposes of the Act. This statute, however, does not authorize the Board to promulgate rules and regulations which have the effect of enlarging its authority beyond the scope intended by Congress.”

At present, Congress has not authorized the NLRB to act; Section 6 is silent on a specific grant of power to force employers to post notices, and previous posting requirements have an explicit legislative tether. We believe the lack of congressional intent is telling. Even if political circumstances might hinder the current effort, the NLRB cannot act here without specific congressional legislation. Thus, the proposed rule likely violates Section 706 (2)(C) of the APA because the Board is acting “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”

Proposed Action is Arbitrary and Capricious:

In addition to our general agreement with Commissioner Brian Hayes, we would like to echo the testimony of G. Roger King before the House Education and Workforce Committee. Mr. King, a Partner at Jones Day, openly criticized the capriciousness of the proposed posting requirement.

The proposed rule highlights only some of the rights guaranteed in the NLRA. We believe the omission of certain rights violates the arbitrary and capricious standard under Section 706 (2)(A) of the APA. As Mr. King observed, “[S]ubstantively, the notice only informs employees of some of their rights under federal labor law. For instance, there is no clear statement that employees have a right to refrain from joining a union or paying any dues in a right-to-work state. Nor is there any indication that employees have the right to file decertification petitions. Finally, there is no mention of an employee’s right to remain nonmembers, paying only dues for representational activities under Communications Workers v. Beck….”

If the goal of this regulation is to “enable the exercise of rights under the statute [NLRA],” then why does the Board exclude several right-to-work provisions under the NLRA? We believe this exclusion is political, designed solely to increase the number of union workers, a policy that cannot be carried out in the current political environment.

In sum, we believe the proposed action violates Section 706 (2)(A) of the APA because the NLRB capriciously omitted several guaranteed rights in the NLRA and instead included only pro-union provisions of the Act.

Thank you for the opportunity to express our views on this important topic. If you have questions about our comment, please feel free to contact us at any time.

Sincerely,

Douglas Holtz-Eakin

Sam Batkins