Fair Notice: Reassessing NLRB Authority to Inform Employees of Their Rights to Unionize

Today, the vast majority of American workers are unaware of their substantive rights to organize and engage in concerted activities in the workplace. Over the last thirty years, union activism has experienced stark declines that have consequently lessened the level of public educational dialogue surrounding labor rights. As the agency tasked with promoting and enforcing labor organization rights, the National Labor Relations Board (NLRB) sought to combat this issue through its rarely utilized rulemaking authority-a measure fraught with perilous consequences. In 2011, the NLRB promulgated a regulation that required employers to display posters in the workplace that inform employees of their substantive rights. This effort faced major criticism, setting off litigation that invalidated the notice poster requirement and ultimately curtailed the NLRB's authority to codify substantive rules. Without reexamination, the results of the notice poster litigation will substantially impact the NLRB's future rulemaking efforts.Despite the Supreme Court's affirmation of the NLRB's power to issue substantive rules in American Hospital Ass'n v. NLRB, two courts invalidated the NLRB's notice-posting regulation as an overreach of the Board's rulemaking authority. Remarkably, both decisions arrived at the same conclusion through starkly different reasoning. Categorizing the NLRB as a purely reactive entity, the U.S. Court of Appeals for the Fourth Circuit invalidated the notice-posting rule as an impermissible proactive effort in Chamber of Commerce v. NLRB. Alternatively, in National Ass'n of Manufacturers v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit held that the notice-posting regulation violated statutory and constitutional protections of workplace speech regarding labor organization.This Comment argues that the Fourth and D.C. Circuit opinions create a difficult barrier for all future NLRB rulemakings, and their combined result contradicts the Supreme Court's decision in American Hospital Ass'n. Looking to constructions of the NLRB's rulemaking authority, as well as the legislative history of rulemaking and notice under the National Labor Relations Act, this Comment proposes that the NLRB possesses rulemaking authority to proactively restrict and influence matters through generally applicable regulations. In particular, the progeny of union-specific notice requirements pursuant to Communications Workers of America v. Beck provide a strong basis for NLRB authority to require more generalized notification of rights. Moreover, in examining the contents of the notice poster, this Comment argues that the regulation does not violate workplace speech protections because the poster bears a purely governmental message that is reasonable in the discourse and debate of labor rights. Furthermore, employers who disagree with the poster maintain the right to disavow any nexus or endorsement with the posters content.The labor movement was the principal force that transformed misery and despair into hope and progress. Out of its bold struggles, economic and social reform gave birth to unemployment insurance, old age pensions, government relief for the destitute, and above all new wage levels that meant not mere survival but a tolerable life. The Captains of Industry did not lead this transformation; they resisted it until they were overcome. When in the thirties the wave of union organization crested over the nation, it carried to secure shores not only itself but the whole society.-Martin Luther King, Jr.1INTRODUCTIONThere is much truth to the old adage "knowledge is power." Born from this maxim is the controversy between labor and business regarding a simple poster intended to teach employees about their right to unionize.2 In 2011, the National Labor Relations Board (NLRB or "the Board") promulgated a regulation requiring that all employers subject to the jurisdiction of the National Labor Relations Act (NLRA or "the Act") post notices in the workplace that inform employees of their substantive rights. …