GOP Legislators Oppose NLRB Notice Rule; Amicus Briefs Cite Early Legislative History

Reproduced with permission from Daily Labor Report, 221 DLR A-2 (Nov. 16, 2011). Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

House Education and the Workforce Committee Chairman John Kline (R-Minn.) and 35 other House Republicans Nov. 15 joined the debate in two court challenges to a National Labor Relations Board regulation that would require employers under NLRB jurisdiction to post a notice advising employees of their rights under federal labor law (Nat'l Ass'n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629, amicus brief filed 11/16/11; Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, unopposed motion for leave to file amicus brief 11/15/11).

The legislators asked the U.S. District Court for the District of Columbia to consider their arguments that Congress made a deliberate choice in passing the National Labor Relations Act not to require notice postings by employers that are not involved in NLRB proceedings.

The representatives filed a substantially identical brief in the U.S. District Court for the District of South Carolina, where a second challenge to the board rule is pending.

Asserting that Congress made "legislative choices" in 1934 not to authorize notice and enforcement measures like those adopted by NLRB in its regulation, the GOP representatives argued that the board's action "accomplishes precisely what Congress considered and rejected when adopting the NLRA; treating a failure to provide notice-to whatever extent it was required-as non-compliance with the Act."

Kline called the NLRB rule a "flawed regulation" in a statement Nov. 16 and said "the Obama NLRB is manipulating federal labor policies to advance an activist agenda and it must be stopped."

Notification Rule to Take Effect in January

Acting on a 1993 petition for rulemaking, a divided NLRB proposed the regulation in December 2010 (244 DLR AA-1, 12/21/10) and published a final rule in the Aug. 30 Federal Register (76 Fed. Reg. 54,006) (165 DLR AA-1, 8/25/11).

The rule was to take effect Nov. 14, but NLRB Oct. 5 announced a rule amendment that moved the effective date to Jan. 31, 2012 (193 DLR A-1, 10/5/11).

Citing Section 6 of the NLRA, 29 U.S.C. § 156, which gives the agency authority to adopt "such rules and regulations as may be necessary to carry out the provisions of this Act," a three-member board majority consisting of then-Chairman Wilma B. Liebman and Members Craig Becker and Mark Gaston Pearce adopted the rule as a measure to address a "knowledge gap" that they said left most American workers unaware of their NLRA rights.

The rule will apply to employers covered by the NLRA, excluding states or political subdivisions not subject to board jurisdiction.

An employer that fails or refuses to post the required notice would violate Section 8(a)(1) of the act, which proscribes employer action "to interfere with, restrain or coerce employees" in their exercise of rights guaranteed by the NLRA. The rule also provides that failure to post the notice may justify tolling the act's six-month limitation for filing unfair labor practices, while a willful refusal to post the notice may support a finding of unlawful motive in an unfair labor practice proceeding.

Member Brian E. Hayes dissented from the board's proposing the rule as well as its final adoption, asserting that the act did not authorize the board's action, which he called "patently arbitrary and capricious."

Sen. John Thune (R-S.D.) Oct. 6 introduced legislation (S. 1666) that would prohibit the board from proceeding with final implementation of the rule (196 DLR A-11, 10/11/11), but the Senate has not yet acted on the bill.

Challenges Underway in Two Federal Courts

The National Association of Manufacturers, the National Right to Work Legal Defense and Education Foundation, and the National Federation of Independent Business filed lawsuits against NLRB in the U.S. District Court for the District of Columbia (176 DLR A-1, 9/12/11; 181 DLR A-19, 9/19/11).

Motions for summary judgment were filed in those cases Oct. 26 (209 DLR A-10, 10/28/11), and Judge Amy Berman Jackson will hear arguments in the case Dec. 19.

In the South Carolina litigation, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce are the plaintiffs. The business groups and NLRB filed motions for summary judgment Nov. 9, and Judge David C. Norton has scheduled a hearing for Jan. 11, 2012.

Absence of NLRA Provision Called Legislative Choice

In their amicus briefs, the legislators said they support the requests for summary judgment against the board in both lawsuits. "[T]he NLRA and its legislative history demonstrate that the Board exceeded its authority, and acted contrary to the NLRA, by creating a notice obligation imposed on employers that are not parties to pending unfair labor practice or representation proceedings," they contended.

Citing the "plain language" of the NLRA, which makes no express mention of an employer notice obligation, the brief argued that the silence of the statute stands in contrast to other laws, like the Railway Labor Act, which includes an employer notice obligation.

Citing the contrast between statutes, the legislators argued that "legislative choices have dictated whether or not (and what type of) notice obligations exist under particular laws." The absence of a notice requirement in the NLRA reflects a choice not to adopt one, they argued.

History of Wagner Bills Cited in Amicus Briefs

The representatives observed that the board majority that gave final approval to the notice rule wrote there was nothing in the history of the act to indicate that Congress had considered and rejected the inclusion of a notice requirement in the statute. The board's "assertions are plainly contradicted" by the act's legislative history, the Republicans argued.

Sen. Robert Wagner (D-N.Y.) authored the bill that became the NLRA in 1935, but he also introduced a bill in 1934 during the 73rd Congress (S. 2926) that, along with a companion House bill, "resembled the current NLRA," the legislators said.

S. 2926 and H.R. 8434 contained provisions that would have abrogated any existing contract or agreement that conflicted with the legislation, and would have required employers to notify employees of such abrogation. Failure to provide the required notice would have been treated as an unfair labor practice under the 1934 proposals.

But the brief asserted that after legislators heard testimony in opposition to the provisions, the disputed language was deleted from a substitute version of S. 2926 that was reported by the Senate Committee on Education and Labor.

"The notice provisions were similarly deleted and omitted from all subsequent versions of the Wagner Act legislation, including the version signed into law," Kline and the other legislators noted.

Referring to the 1934 bills, which never became law, the brief asserted that "the original Wagner Act legislation plainly contemplated broad-based notification by employers which, in the circumstances then existing, would have functioned like a generalized notice requirement," but even Wagner decided against adopting such a requirement.

Notably, Kline and his colleagues argued, no similar provision was included in S. 1958, Wagner's bill in the 74th Congress that became the NLRA.

"The inescapable conclusion from the Act's legislative history is that Congress intended that employers would not have any NLRA obligation to provide notice to employees," the brief asserted.

"Jurisdictional Constraints' Seen in NLRA as Enacted

The Republican legislators also contended that "[e]ven if one disregards the decision by Congress not to impose a notice obligation on employers under the NLRA, the Act's legislative history reveals that Congress consciously limited the NLRB's jurisdiction over employers to actual parties, in pending cases, and adjudicated facts based on evidentiary hearings."

"The original Wagner Act legislation-S. 2926 and H.R. 8434-would have given the Board broad affirmative powers to address matters at the Board's own initiative," the amicus brief continued. It noted that the bills that died in the 73rd Congress would have allowed board members or designated NLRB employees to initiate complaints based on information obtained from any source.

Those provisions were omitted from the NLRA when it was enacted. Section 10(b) of the act conditions board action in unfair labor practice cases on the filing of a charge by "any person" and does not mention NLRB-initiated complaints. Representation cases, Kline and the Republican legislators noted, require the existence of a question concerning employee representation.

Arguing that the language of the NLRA and the debate leading to its passage reflect "jurisdictional constraints that Congress built into the Act," the amicus brief concluded that "the Board's creation of a notice obligation applicable to employers generally should be deemed in excess of the Board's authority and contrary to the NLRA."

Charles I. Cohen, a former NLRB member and senior counsel at Morgan Lewis & Bockius in Washington, D.C., was one of the attorneys representing Kline and the other legislators.

"As the legislative history makes clear," Cohen told BNA, "Sen. Wagner himself, together with his colleagues, thought there should be no requirement for companies to provide notification to employees. It is time for the NLRB to honor those wishes and abandon its ill-fated notice requirement."

Philip A. Miscimarra, a Morgan Lewis partner in Chicago who also represented the legislators, told BNA the Republican House members decided to file the amicus brief because they believed the board regulation was contrary to the NLRA and outside the board's authority.

"Their interest in the litigation stems from the faquotedct that legislative decisions are reserved for Congress," the lawyer said.

NLRB did not respond to a request for comment on the amicus filings.

The legislators were represented by Cohen and David R. Broderdorf of Morgan Lewis & Bockius in Washington, D.C., Miscimarra, Ross H. Friedman, and Rita Srivastava in the firm's Chicago office, Andriette A. Roberts in the New York office, and Joshua W. Dixon of Parker Poe Adams & Bernstein in Charleston, S.C.

Text of the amicus brief filed in federal court in the District of Columbia may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8nnq9e. The brief filed in federal court in South Carolina may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8nnqa2.