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Notice-Posting of Employee Rights: NLRB Rulemaking and the Upcoming Backfire

This article begins by noting the typical fear of unions by nonunion employers, a fear that traditionally results in various efforts — both legal and illegal — to prevent employees from achieving union representation. It focuses upon two unusual products of those efforts, two federal appellate decisions which — rather than directly discouraging employees from joining unions — make it difficult for most of them to even learn about their statutory rights to engage or not to engage in union-related activity. Those decisions — each differently and uniquely premised — invalidated a substantive rule of the National Labor Relations Board that would have required employers to post a government-supplied notice that informs employees at their workplaces about those rights. It is the author’s opinion that because both of those decisions are grossly contrary to established canons of administrative law and settled NLRB case law and unambiguous statutory text, which the article demonstrates, failure to seek certiorari-review was a serious mistake. Their presence leaves a wake of confusion that raises a disturbing combination of questions under both labor and administrative law regarding the future of the canonical Chevron doctrine, which has long-governed the authority of federal agencies to construe their enabling statutes when those statutes are silent or ambiguous regarding the matter in issue. The matter here in issue is whether the Labor Board had the right to require the posting of the same type of governmental notice that commonly exists in most American workplaces, a notice that clearly complied with the Act’s never-amended policy of encouraging collective bargaining and union representation.The article reviews the past and present features of NLRB substantive rulemaking, both generally and with reference to the invalidated rule, which is followed by detailed analyses of the two Opinions, revealing their cross-purposes with existing law. And finally, it identifies and describes a different but potentially effective new measure which, notwithstand the aforesaid decisions, will allow employees, in their workplaces, to engage in posted communications about their NLRA rights and other related communications. That measure is a proposed new workplace rule, the legal authority and workable features of which the author offers as an effective backfire emanating from the aforesaid two ventures in judicial obstructionism.