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

By McFarlane, Joseph H. | Journal of Corporation Law, Winter 2013 | Go to article overview

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


McFarlane, Joseph H., Journal of Corporation Law


I. 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)

II. BACKGROUND

Congress enacted the National Labor Relations Act in 1935 amidst the background of the Great Depression and New Deal reform. …

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