National Ass'n of Manufacturers v. National Labor Relations Board
405 U.S. App. D.C. 153
| D.C. Cir. | 2013Background
- NLRB issued a rule requiring posting of a Notice of Employee Rights under NLRA, applicable to about six million employers, in 2011.
- Rule mandated conspicuous posted notices and intranet/internet posting for electronically communicating employers, defining failure to post as an unfair labor practice.
- Board tethered enforcement to tolling of the six-month statute of limitations and to using noncompliance as evidence of anti-union animus.
- District court upheld some authority under § 6 but held other provisions invalid and enjoined tolling and anti-employee-motive provisions.
- The Board and challengers cross-appealed; another district court decision in a different circuit related to Board authority was noted.
- The court discusses potential quorum issues and whether the rule could be subject to judicial review timing, ultimately vacating the posting rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §8(c) bars compelled employer speech | NAM contends posting coerces and inflates employer speech. | NLRB argues poster is Board speech and permissible. | §8(c) violated; compelled posting invalid. |
| Whether §6 authorized promulgation of the posting rule | §6 allows rulemaking to carry out NLRA objectives. | Rule necessary to inform employees of rights. | §6 authority rejected; rule invalid. |
| Whether tolling of §10(b) is permissible | Tolling is a remedial equitable modification. | Tolling supported by Board’s interpretation. | Tolling rule invalid under §10(b). |
| Whether subpart A posting requirement is severable | Severability could salvage part of rule. | Severability not appropriate; core rule invalidates. | Subpart A vacated along with rule. |
Key Cases Cited
- Chamber of Commerce of U.S. v. NLRB, 463 U.S. 144 (U.S. 2010) (context for §8(c) and compelled-speech analysis)
- Brown & Root, Inc. v. NLRB, 333 F.3d 628 (5th Cir. 2003) (discusses §8(c) limitations and compelled speech)
- Barnette v. Board of Education, 319 U.S. 624 (1943) (compelled speech and right not to speak)
- Wooley v. Maynard, 430 U.S. 705 (1977) (right not to display state motto; compelled speech)
- Riley v. NFB of North Carolina, 487 U.S. 781 (1988) (speech vs. compelled disclosure of facts)
- UAW-Labor Employment & Training Corp. v. Chao, 325 F.3d 360 (D.C. Cir. 2003) (discusses §8(c) and government speech)
- Kubrick v. United States, 444 U.S. 111 (1979) (ignorance of law and tolling implications)
- Zipes v. Trans World Airlines, 455 U.S. 385 (1982) (equitable tolling and limitations accrual)