Nat'l Ass'n of Mfrs. v. Nat'l Labor Relations Bd.

• Decision Date: 02 March 2012
• Docket Number: Civil Action No. 11–1629 (ABJ).
• Citation: 846 F.Supp.2d 34
• Parties: NATIONAL ASSOCIATION OF MANUFACTURERS, Plaintiff, v. NATIONAL LABOR RELATIONS BOARD, et al., Defendants.
• Court: U.S. District Court — District of Columbia

846 F.Supp.2d 34

NATIONAL ASSOCIATION OF MANUFACTURERS, Plaintiff,

v.NATIONAL LABOR RELATIONS BOARD, et al., Defendants.

Civil Action No. 11–1629 (ABJ).

United States District Court,

District of Columbia.

March 2, 2012.

Held Invalid

29 C.F.R. §§ 104.210, 104.214(a).

Gregory F. Jacob, William G. Miossi, Winston & Strawn LLP, Maurice Baskin, Venable LLP, Howard Christopher Bartolomucci, Bancroft, PLLC, Washington, DC, Jeremy Gilman, Kristen M. Cady, Maynard A. Buck, Patrick O. Peters, Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP, Cleveland, OH, Glenn M. Taubman, National Right to Work Foundation, Springfield, VA for Plaintiff.

Abby Propis Simms, Dawn Laura Goldstein, Eric Gray Moskowitz, National Labor Relations Board, Washington, DC, for Defendants.

Jonathan C. Fritts, Morgan, Lewis & Bockius, LLP, Washington, DC, Doreen S. Davis, Morgan, Lewis & Bockius LLP, Philadelphia, PA, Philip A. Miscimarra, Morgan, Lewis & Bockius LLP, Chicago, IL, for Amici.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiffs National Association of Manufacturers (“NAM”), et al. and National Right to Work Legal Defense and Education Foundation (“NRTW”) et al. each brought separate actions against the National Labor Relations Board (“NLRB,” “Board”), and its members and General Counsel in their official capacities. They allege that the Board's promulgation of the Final Rule entitled “Notification of Employee Rights Under the National Labor Relations Act” exceeded its authority under the National Labor Relations Act (“NLRA” or “the Act”) in violation of the Administrative Procedure Act (“APA”), and that it violated plaintiffs' First Amendment right to refrain from speaking. The actions were consolidated [Dkt. # 16], and the motions for preliminary injunction that originally accompanied the complaints became moot when the Board extended the effective date of the new rule. See Minute Order dated 10/5/2011. The parties have now cross-moved for summary judgment,¹ and the Court has also received several amicus briefs in support of both sides.

The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule—the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

BACKGROUND

Statutory Background

The National Labor Relations Act is the federal statute that regulates most private sector labor-employer relations in the United States. 29 U.S.C. § 151 et seq. The first version of the National Labor Relations Act, known informally as the “Wagner Act,” was passed by Congress in 1935. Pub. L. No. 74–198, 49 Stat. 449 (1935). It has since been amended three times, most recently in 1974. See Labor Management Relations Act (“Taft–Harley Act”), Pub. L. No. 80–101, 61 Stat. 136 (1947); Labor Management Reporting and Disclosure Act (“Landrum–Griffin Act”), Pub. L. No. 86–257, 73 Stat. 519 (1959); Health Care Amendments, Pub. L. No. 93–360, 88 Stat. 395 (1974).

The Act begins with an unequivocal declaration of national policy:

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

29 U.S.C. § 151. This statement is followed by a number of substantive provisions,including several that are relevant to this case.

Sections 153 to 156 establish the National Labor Relations Board. Most pertinent here, section 156 grants the Board the “authority from time to time to make, amend, and rescind, in the manner prescribed by [the Act], such rules and regulations as may be necessary to carry out the provisions of this [Act].” Section 157 is a declaration of the rights that employees “shall have,” including, in part, “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively ... [, and] to refrain from any or all of [those] activities.” The next section of the Act defines unfair labor practices for both employers and labor organizations, and, in particular, it provides: “[i]t shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1). Section 158 also specifies that the “expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” 29 U.S.C. § 158(c).

Finally, sections 159, 160, and 161 of the Act establish the Board's authority over bargaining representatives and elections, its authority to adjudicate disputes about unfair labor practices, and its investigatory authority in its adjudicative role. Under section 160, the Board may only exercise its adjudicatory powers once a charge, alleging that some employer or labor organization has engaged in an unfair labor practice, has been filed. 29 U.S.C. § 160(b). Section 160 also contains the statute of limitations for the issuance of a complaint: “[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made....” 29 U.S.C. § 160(b).

Regulatory Background

The Board promulgated its Final Rule, “Notification of Employee Rights under the National Labor Relations Act,” in the Federal Register on August 30, 2011, after announcing a Proposed Rule and subjecting it to a notice and comment process.²75 Fed.Reg. 80,410 (Dec. 22, 2010); 76 Fed.Reg. 54,006 (Aug. 30, 2011). One Board member dissented. 76 Fed.Reg. 54,006, 54,037–42. The text of the Rule is about four pages long. Id. at 54,046–50. It is divided into three subparts: Subpart A contains the definitions and notice posting provisions, Subpart B contains the enforcement provisions, and Subpart C contains ancillary provisions. Id. The relevant provisions are summarized below.

A. Notice Posting

Subpart A requires all employers subject to the NLRA to “post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures.” 29 CFR § 104.202(a). The notice takes the form of an eleven-by-seventeen-inch poster that employers can either download from the NLRB website and print or obtain in hard-copy from any of the Board's regional, subregional, or resident offices. Id. § 104.202(b), (e). The Board also providestranslated versions of the posters for employers who are required to post translations.³Id. § 104.202(d). Employers who customarily communicate with their employees about personnel rules or policies using an intranet or internet site are required to also post the notice prominently on the site. Id. § 104.202(f).

The NLRB seal is prominently displayed on the top left corner of the poster, and the phrase, “This is an official Government Notice ...” is printed in bold typeface along the bottom margin. See Notice, http:// nlrb. gov/ sites/ default/ files/ documents/ 1562/ employee rightsposter– 8– 5 x 11. pdf.

The notice describes the National Labor Relations Act (“NLRA”), and it states the following:

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees' own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Chose not to do any of these activities, including joining or remaining a member of a union.

The text then breaks into two columns. The left column contains a list of items that “it is illegal for your employer” to do, and the right column consists of a list of items that “it is illegal for a union or for the union that represents you in bargaining with your employer” to do. Finally, the text merges back into a single column where the contact information for the NLRB is provided. The notice concludes with the instruction: “If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity.”

B. Enforcement

Subpart B lays out the methods by which NLRB will enforce the notice posting provisions of the Rule. It begins with the explanation, “The Board has determined that employees must be aware of their NLRA rights in order to exercise those rights effectively.” 29 C.F.R. § 104.210. It goes on to state that an employer's...