“What Jefferson was saying was, Hey! You know, we left this England place ‘cause it was bogus; so if we don’t get some cool rules ourselves – pronto – we’ll just be bogus too! Get it?”
— Jeff Spicoli, Fast Times at Ridgemont High (1982)
This fall, the D.C. and Fourth Circuits will hear two parallel challenges to a union-notice rule promulgated by the National Labor Relations Board. The NLRB’s rule would require virtually every private company in the country to post a Notice advising employees of their right to organize a union and to strike. In justifying the rule, the NLRB explained that most employees do not know about their labor rights … as evidenced by surveys of high school students in the 1980s. The NLRB also relied on anecdotal evidence from “West Germany” and a remarkably contorted statutory analysis. If the circuit courts split, as the district courts split below, the cases could easily wind up in the Supreme Court.
The NLRB finalized its notice-posting rule in August, 2011, over a vigorous dissent from the NLRB’s lone Republican member. Not surprisingly, the rule was seen by many observers as a political move designed to reward President Obama’s union allies. In its 76-year history, the NLRB had never before asserted the broad authority to require employers to post such a Notice, or indeed to take any affirmative act outside the context of a union election or alleged misconduct. The NLRB received 7,000 comments on the proposed rule. Most opposed it. Employer groups complained that “the notice reads more like a union manifesto than an unbiased explanation,” and that “the Notice makes no pretense about the poster’s primary purpose – the promotion of union organizing.”