Published: April 13, 2012
A federal judge in South Carolina ruled on Friday that the National Labor Relations Board did not have the authority to order most private employers to post notices telling workers about their right to unionize under federal law.
The judge, David C. Norton of United States District Court in Charleston, rejected the labor board’s argument that its order to post such notices was necessary for the board to carry out its mission. He also rejected the board’s contention that Congress had delegated authority to the board to order the posting of such notices, which would explain the right to bargain collectively, to distribute union literature and to work together to improve wages and conditions.
Judge Norton’s decision clashes with one that a federal district court judge in Washington, D.C., issued last month, concluding that the labor board did have the authority to issue its order on posting notices.
Officials with the labor board and the United States Chamber of Commerce, the main plaintiff in the South Carolina case, said their lawyers were looking into whether Friday’s ruling would or should cause the suspension of the board’s order just in South Carolina or nationwide.
Nancy Cleeland, the labor board’s spokeswoman, said, “Our attorneys are studying the decision and deciding what our response will be.”
Randel K. Johnson, the chamber’s senior vice president for labor, immigration and employee benefits, said, “We’re quite pleased with the decision, and we hope the labor board will suspend the regulation across the country until this all gets sorted out.”
Several legal experts predicted that the South Carolina decision would be appealed to resolve the conflict between the two rulings.
The ruling on Friday came in a state where the labor board is hugely unpopular because it had sought to have Boeing move a new $750 million production line for its Dreamliner to Washington State from South Carolina.
Judge Norton noted that for the 77 years since the National Labor Relations Act was passed, the labor board “has been nearly unique among federal labor agencies in not requiring employees to post a general notice of employee rights in the workplace.” But he noted that last August, the board changed course and issued the new regulation, which business groups argued was part of the board’s pro-union tilt under President Obama.
Noting that many workers are unaware of their rights under the National Labor Relations Act, the board said the regulations were intended to make it easier for workers to exercise their rights under the act.
Judge Norton, appointed by the elder President George Bush, wrote, “The legislative history of this act supports a finding that Congress did not intend to impose a universal notice-posting requirement on employers, nor did it authorize the board to do so.”
In the Washington ruling, Judge Amy Berman Jackson, an Obama appointee, found that the board was reasonable in concluding that many workers including high school students, recent immigrants and other workers in nonunion workplaces were unaware of their right to form unions or bargain collectively.
“The notice-posting rule is a reasonable means of promoting awareness,” she wrote, upholding the regulation.