Blind Justice?

Legal Corner

Volume 112, No. 7/8July, 2012

Harvey Mars, Esq.

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived at (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.

Two District Court decisions turn back the clocks on human rights

Two separate court rulings instigated by the U.S. Chamber of Commerce have revealed that our progressive National Labor Relations Board is under siege. These rulings, while technical, are not trivial. They substantially impact the inner workings of the NLRB, the sole federal agency vested with the authority to investigate and remedy employer infractions against employees and conduct union representation elections.

These rulings have as their ground-spring the 2010 Supreme Court’s decision in New Process Steel v. National Labor Relations Board, 130 S. Ct. 2635 (2010).

There, the court determined that hundreds of NLRB decisions were invalid because the board lacked the required three-member quorum at the time they were issued. (I wrote about this in my Sept. 2010 column, which can be read at

While the practical impact of the New Process Steel decision has not been as profound as originally feared (many decisions were not overturned after all), its precedential effect has been extremely damaging.

First we have Chamber of Commerce v. National Labor Relations Board, a decision rendered by the U.S. District Court for the District of South Carolina, Index No. 11-2516 (April 13, 2012).

In this determination, the court enjoined the NLRB from implementing a rule requiring employers subject to the National Labor Relations Act to put up posters in the workplace, which inform employees of their Section 7 rights to form and join labor organizations. An employer’s failure to post would be deemed an unfair labor practice.

The NLRB’s rationale for the posting requirement was that most other federal labor statutes have posting requirements. This requirement for the NLRA was singularly absent.

This rationale has great merit. Nonetheless, the court determined that this regulation was outside the scope of the board’s rule-making authority since it was not intrinsically necessary to assist the NLRB in carrying out the objectives of the statute. While other labor statutes contained statutory provisions requiring a notice posting, this was absent from the NLRA.

To the court, requiring the posting of a notice was not within the purview of the NLRB’s rulemaking authority, to fill in this statutory gap. Only Congress has that authority. It seems that the NLRB’s posting rule is not unreasonable given that employers are required to post notices identifying to employees the other statutorily protected rights they have.

The NLRA predates these statutes by many years and the statute’s failure to require a posting is understandable given that notice posting is a relatively recent phenomenon.

The lack of posting is a significant gap that should be rectified. Given the court’s ruling on this issue, this gap probably has to be remedied by Congress.


The second decision is even more pernicious.

In Chamber of Commerce v. National Labor Relations Board II (the Coalition for a Democratic Workplace was a co-plaintiff), Index no. 11-2262, on May 14, 2012, the U.S. District Court for the District of Columbia invalidated the new election rules adopted by the BLRB that would have streamlined the representational election process. (See my Sept. 2011 column.)

These rules would have expedited the time frame for elections, eliminated the need for hearings in situations when the issues were clear and allowed unions to obtain greater details regarding their potential constituents.

All of these new rules would have been helpful to union organizing.

However, the court held that the rules were not approved by a proper quorum since Brian Hayes, a Republican appointee, did not cast a vote.

To put it bluntly, this just doesn’t make sense!

The board had a quorum. Hayes simply did not vote.

If NLRB rules can be sandbagged by a rogue board member who refuses to participate in the process, then the NLRB will cease to operate.

Hayes’s decision not to vote was a calculated strategy to prevent the regulations from becoming effective.

Remember, it was Hayes who threatened to resign from the board in order to prevent these regulations from becoming effective.

Adding to this intrigue is the resignation of Terrance Flynn (another Republican appointee) on July 24 from the NLRB, amid allegations that he improperly released information concerning NLRB internal deliberations to two former members of the board. (One leak was allegedly to Peter Schaumber, a former NLRB chairman, who is a political adviser to Mitt Romney.)

What should we make of all of this?

It appears that, now more than ever, the NLRB has become a lightning rod for partisan politics.

It also appears that – at least for the time being – two forward-thinking NLRB regulations are on hold. Possibly they cannot be revived.

A great deal depends upon the political climate after the upcoming elections. What is in store for organized labor is anyone’s guess.