Poster wars: the NLRB and the controversy over an 11-by-17-inch piece of paper.

• Author: McFarlane, Joseph H.

1. Introduction II. Background A. The National Labor Relations Act. 1. The Precursor to the NLRA: The Norris-LaGuardia Act 2. Passage and Purpose of the NLRA 3. Employee Rights Under the NLRA. B. The National Labor Relations Board C. The NLRB's New Posting Requirement III. Analysis A. Posting Rule--Proponents' Arguments 1. Courts Generally Interpret Rulemaking Clauses in Statutes Generously Agencies' Enabling 2. The Board's Expansive Power Under the NLRA 3. Posting Requirements of Other Agencies a. Congressional Acts Related to Employment Discrimination b. Congressional Acts Related to Employment Discharge c. DOL's Posting Requirements 4. Employee Awareness of Union Rights B. Posting Rule--Opponents' Arguments 1. The NLRB Lacks Statutory Authority 2. The Rule Is Arbitrary and Capricious C. Political Debate Behind the Posting Rule Controversy IV. Recommendation A. The NLRB Has the Implied Statutory Authority to Enact the Notice Rule B. The Posting Rule Is Consistent with the Purpose of the NLRA C. The Political Rhetoric of the Debate Does Not Affect the NLRB's Authority to Enact the Posting Rule V. Conclusion I. Introduction

   The employer-employee relationship is at the epicenter of commerce. This relationship is complex and rife with difficulties, as the two sides often have competing objectives and aspirations. From the smallest sole proprietorship to the largest corporation, where there are employers and employees, there is a tension. The struggle is simple and constant: employees want to work less for more pay, while employers want their employees to work more for less pay. Prior to modern legislation, the Golden Rule governed this relationship in the United States: "he who has the gold makes the rules." (1) Fortunately, for American workers, labor laws have helped level the playing field.

   Congress passed the National Labor Relations Act of 1935 (the NLRA or the Act) (2) to help workers gain equality at the bargaining table. The Act guarantees workers certain rights, such as the right to form unions, to bargain collectively through their representatives, and to strike. (3) The Act created the National Labor Relations Board (the NLRB or the Board) to assist workers in asserting these rights. (4) From time to time, the Board issues rules that it finds necessary to help workers achieve the equality of bargaining power contemplated in the NLRA.

   On August 30, 2011, the Board issued a rule requiring employers to post 11-by-17inch notices in their places of business informing employees of their NLRA rights. (5) The Board found that workers were largely unaware of these rights and thus were unable to benefit from the Act. (6) The Board found the posting rule necessary for effectuating the purpose of the NLRA and helping workers at the bargaining table. (7)

   While the Board and other supporters see the new rule as a way to apprise workers of their rights and to help them assert those rights, opponents see it as an effort by Democrats to heavily encourage the unionization of the workplace. Part II of this Note details the history, purpose, and function of the NLRA, and the NLRB's role in administering the Act. (8) Part II also explains the NLRB's new notice requirement. Part III outlines the debate over the new rule and the major legal and political issues involved. (9) Part IV provides a recommendation for how courts should evaluate the NLRB's authority to promulgate such a rule. (10) While political ideologies undergird this debate, the purpose of the NLRA, the NLRB's statutory authority, and analogous rules of other agencies show that the NLRB has not exceeded its legal authority by issuing the notice rule. (11)

2. BACKGROUND

   Congress enacted the National Labor Relations Act in 1935 amidst the background of the Great Depression and New Deal reform. Prior to the Act, workers enjoyed little protection from miserly or abusive employers and had little recourse against unfair labor practices. (12) The history and development of the Act and the Board help illuminate the current tensions between businesses and the new NLRB posting rule.

   1. The National Labor Relations Act

      The National Labor Relations Act of 1935 created the National Labor Relations Board to enforce the provisions of the Act and enact rules to uphold the Act's policies. (13) Since its inception, opponents have challenged the Act and the Board's rulemaking power to enforce it. (14) Businesses continue to resist Board rules with the same fervor as they did in the early days of the Act. (15) As discussed, (16) the basic nature of the employer-employee relationship explains this struggle.

      1. The Precursor to the NLRA: The Norris-LaGuardia Act

         In 1932, Congress passed the Norris-LaGuardia Act. (17) Prior to the Act's passage, workers had few remedies against unfair labor practices, as courts would simply enjoin striking workers and force them back to work. (18) With the passage of the Norris-LaGuardia Act, Congress declared that the public policy of the United States concerning labor would be to help ordinarily helpless workers protect their freedom of labor rights and to give workers full freedom of association with fellow workers. (19) To uphold this policy, Congress, through the Norris-LaGuardia Act, prohibited courts from issuing injunctions against labor disputes, "except in certain circumstances," (20) and banned "yellow-dog" contracts. (21)

      2. Passage and Purpose of the NLRA

         Proponents of the United States' newly memorialized labor policy outlined in the Norris-LaGuardia Act believed that to ensure this policy of protection for workers' rights and free association, employees and employers needed "equality of bargaining power" (22) in addition to the protections offered by the Norris-LaGuardia Act. One advocate opined, "'[t]he only way to accomplish [equality of bargaining power] is by securing for employees the full right to act collectively through representatives of their own choosing.'" (23) Therefore, Congress passed the National Labor Relations Act in 1935-also known as the Wagner Act--to guarantee workers the free right of association and collective bargaining. (24)

         In 1943, the Supreme Court explained that the NLRA's purpose was "to protect the workmen from employer pressure and leave them free to choose for themselves whether, and with whom, they will associate." (25) This policy emerged from the First Amendment right of freedom of association. (26) Congress enacted the NLRA after courts failed to protect this First Amendment freedom of the American workforce. (27)

         Congress believed that bargaining power inequality between workers and their employers "substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries." (28) Thus, Congress determined that it would combat the burdens to the free "flow of commerce" and "recurrent business depressions" by "encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association [and] self-organization ... for the purpose of negotiating the terms and conditions of their employment." (29)

      3. Employee Rights Under the NLRA

         Section 157 of the NLRA is the apex of the Act for workers' association and bargaining rights. (30) Here, Congress "set[] forth the right of employees to selforganization and to bargain collectively through representatives of their own choosing." (31) Justice Brennan summarized the importance of this section of the Act:

         [I]t is evident that, in enacting [29 U.S.C. [section] 157], Congress sought generally to equalize the bargaining power of the employee with that of his employer.... [W]hat emerges from the general background of [section 157]--and what is consistent with the Act's statement of purpose--is a congressional intent to create an equality in bargaining power between the employee and the employer throughout the entire process of labor organizing, collective bargaining, and enforcement of collective-bargaining agreements. (32) The NLRA guarantees workers' rights to collectively bargain and form unions to give workers equal bargaining power with their employers. (33) Congress created the National Labor Relations Board to enforce and ensure these rights. (34)

   2. The National Labor Relations Board

      Congress gave the NLRB the "authority from time to time to make, amend, and rescind ... such rules and regulations as may be necessary to carry out the provisions of this subchapter." (35) The "provisions of this subchapter" include guaranteeing the right of workers to form labor unions and to bargain collectively. (36) By giving the Board this authority, Congress gave it wide discretion to establish rules and procedures that maintain these rights for workers. (37) According to the Board itself, this "general grant of rulemaking authority fully suffices to confer legislative (or binding) rulemaking authority upon [the Board]." (38)

   3. The NLRB's New Posting Requirement

      On August 30, 2011, the NLRB issued a final rule requiring employers to post notices informing employees of their rights under the NLRA. (39) The NLRB originally scheduled the rule to go into effect November 14, 2011, but it postponed the effective date amidst controversy and scrutiny until January 31, 2012, "in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." (40) Later, the Board had to again postpone the effective date of the rule until April 30, 2012 to "facilitate the resolution of the legal challenges that have been filed with respect to the rule." (41) The new rule applies to private-sector employers who fall under the NLRA. (42) The NLRA defines "employers" and outlines which entities do not fall under the provisions of the...