Poster Wars: The NLRB and the Controversy over an 11-by-17-Inch Piece of Paper

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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-17-inch 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

II. 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.

A. 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. …