The NLRB has relied on a Supreme Court decision validating the Federal Communications Commissions’ rulemaking authority to support its appeal of an April, 2013 decision by the United States District Court for the District of South Carolina decision striking down the NLRB’s notice posting rule. Chamber of Commerce v. National Labor Relations Board. The federal District Court held that the NLRB exceeded its authority in implementing the rule, in violation of the Administrative Procedure Act
The NLRB argued the Supreme Court’s decision in City of Arlington v. Federal Communications Commission ruling [No. 11–1545 (May 20, 2013)] in favor of the Federal Communications Commission refutes the argument that the NLRB lacked the authority to require businesses to post notices informing workers of their right to unionize. In that ruling, the Supreme Court held that courts should apply the broad standard of deference to agency interpretations of the limits of their own authority set forth in Chevron USA Inc. v. Natural Resources Defense Council Inc. ruling [467 U.S. 837 (1984)]. (The Chevron court said it is “clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.”) The NLRB also seized on the Chevron majority’s holding that a general grant of rulemaking authority authorizes rules for all matters with which the agency is charged, claiming that Section 6 of the NLRA is a general conferral of rulemaking authority. Therefore, the NLRB had the authority to issue the poster rule.
This is the second case involving the notice posting rule to reach the United States Courts of Appeal. Last month, the D.C. Circuit held the rule unenforceable because it interfered with employer’s right to free speech under Section 8(c) of the NLRA. (D.C. Circuit Court of Appeals Strikes Down NLRB Posting Rule). It remains to be seen how the latest legal challenge to the NLRB’s notice posting rule will be resolved.