By Ronald J. Kramer.

On September 28, 2012, the NLRB filed its opening brief in the Fourth Circuit Court of Appeals case challenging the South Carolina district court’s April 13, 2012 decision invalidating the NLRB’s NLRA rights poster rule.  NLRB v. Chamber of Commerce of the United States et al., Case No. 12-1757 (4th Cir.).  The Chambers’ response brief is due November 14th, and the Board may submit a reply by December 1st.  Appeals are pending in both the Fourth Circuit and in the D.C. Circuit over the rule.  See id.; National Ass’n of Manufacturers v. NLRB , Case No. 12-5068 (D.C. Cir.).  Briefing in the D.C. Circuit has already been completed and oral argument was held September 11, 2012.

The South Carolina district court basically had determined that neither the legislative history, plain language, nor the structure of the NLRA authorized notice posting independent of the NLRB’s core functions of administering union representation elections or remedying unfair labor practices.  In its forty-seven page brief, the Board argues that its rule was the result of its lawful and reasonable exercise of the Board’s statutory rule-making authority under Section 6 of the NLRA, as well as its authority to fill a statutory gap under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).  The NLRA rights poster rule, it claims, must be upheld so long as it is reasonably related to the purposes of the NLRA, and the parties challenging the rule bear a “heavy burden” to demonstrate the rule’s invalidity.  The Board argues that the Chambers of Commerce (U.S. and South Carolina) could not meet their burden here given both the long tradition of federal agencies requiring notice posting and the evidence within the administrative record showing declining levels of public awareness of the NLRA’s protections and procedures — which justified the need for the NLRA rights poster, according to the NLRB.

The NLRB argues that the district court erred in finding otherwise.  First, the NLRB claims the court improperly read the “necessary” language too narrowly within the Board’s broad rule-making authority despite case precedent demonstrating that the “necessary” language authorizes rules that are simply “reasonably related” to the purposes and policies of the statute.

Second, the NLRB argues the court erred by finding that the structure of the NLRA, in which the Board is unable to affirmatively adjudicate cases without an outside party initiating a charge or filing a petition, means that the NLRB equally is unable to affirmatively require a notice posting.  The NLRB reasons that it has a long practice of proactively creating rules through adjudication, such as solicitation rules, which are no different than adopting rules through its rule-making authority.  The NLRB further notes that its rule-making authority under Section 6 of the Act contains no prohibition from it proactively instituting rules, and that case precedent supports the ability of agencies through rule-making to implement rules imposing affirmative duties. 

Third, the NLRB states the district court should not have assumed Congress did not intend for the Board to require a notice posting simply because in other statutes a notice posting was explicitly required by the statutory text.  The NLRB argues that, while the NLRA’s silence about a notice posting could mean Congress did not intend for there to be one, it equally could mean that Congress never considered the issue or that Congress felt the NLRB should decide the matter.  Moreover, the NLRB pointed out that even though other statutes have posting requirements, other agencies have required notice postings when their enabling statutes are silent.  The NLRB cited the Department of Labor’s rule requiring an FLSA posting as an example, and further noted that the United States District Court for the District of Columbia, in the other notice-posting case, had recognized the Board’s ability to implement such a rule.  National Ass’n of Manufacturers v. NLRB, Case No. 11-cv-1629 (D.D.C. Mar. 2, 2012).

Alternatively, the NLRB argues that the rule was a valid exercise of its gap-filling authority to interpret the NLRA under Chevron and NLRB v. Weingarten, 420 U.S. 251 (1975).  Although the district court found the Board lacked any language to interpret or fill in gaps because the Act never mentioned notice posting, the Board claims that its NLRA rights poster rule is based upon a reasonable interpretation of Section 8(a)(1) of the NLRA.  According to the Board, Section 8(a)(1)’s broad prohibition of employer interference with employee Section 7 rights can be interpreted to authorize the Board to impose affirmative duties on employers, such as notice postings.  Thus, the NLRB argues the NLRA rights poster rule was a valid exercise of the Board’s authority, and it should be upheld.

The Board’s arguments do not appear much different than those the district court addressed and dismissed below or what the Board argued in its briefing before the D.C. Circuit.  The Fourth Circuit, however, may take a completely different position from the district court.  In any event, it most likely will be issuing its decision after the D.C. Circuit has ruled on its case.  While we can expect a petition for certiorari to the Supreme Court regardless of which way the appellate courts rule, if the courts issue contrary decisions, then the Supreme Court will almost certainly have to accept certiorari to settle the matter.  Stay tuned.