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.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Linda R. Carlozzi Linda R. Carlozzi

Linda R. Carlozzi is a Principal in the New York City office of Jackson Lewis P.C. She joined Jackson Lewis in 1997 and specializes in traditional labor law. Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations…

Linda R. Carlozzi is a Principal in the New York City office of Jackson Lewis P.C. She joined Jackson Lewis in 1997 and specializes in traditional labor law. Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations programs. She advises both unionized and union-free clients on a full range of labor and employee relations matters, with a focus on traditional labor law. She has represented numerous employers during arbitration proceedings and negotiations. Ms. Carlozzi also counsels employers during union organizing drives and in labor and employment law proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal, state and city administrative agencies. She regularly represents employers in collective bargaining, provides advice on a diverse range of work place issues, such as those relating to corporate transactions, best workplace practices and conducts management training on a broad range of topics.