The FSSA Technical
Committee met on June 5, 2013 in Chicago, Illinois. The minutes
from this meeting may be found by clickinghere.
APPEALS COURT - NULLIFIES NLRB’S EMPLOYER “NOTICE POSTING” RULE
On May 7, 2013, the federal appeals court in Washington,
D.C. struck down the National Labor Relations Board notice posting rule
that would require nearly 6 million employers, the great majority of
which are small businesses, to post a workplace notice informing
employees of their labor law rights—including the right to form or join
a union. The employer’s failure to post the notice would be an
unfair labor practice and expose the company to other sanctions.
Several business organizations, including the Coalition for a
Democratic Workplace (CDW), which NAW helps manage, challenged the rule
and its enforcement provisions in the DC federal courts. The rule
was issued on August 25, 2011 and has never gone into effect due to the
DC appeals court grant of an emergency injunction to delay the
enforcement date until this appeal is decided. With the issuance
of its May 7th decision, the NLRB notice posting rule and related enforcement
provisions are nullified, absent any further NLRB appeals or a request
for review by the U.S. Supreme Court. (National Association of
Manufacturers, et al. v. NLRB, No. 12-5068). Rule Violates Employers’ First Amendment Rights The three judge panel unanimously declared that the NLRB
rule violates the First Amendment rights of employers against
government compelled speech, by requiring employers to post the
NLRB-mandated notice in the workplace. The U.S. Supreme Court’s “leading
First Amendment precedents have established the principle that freedom
of speech prohibits the government from telling people what to say,”
the court noted. The rule also violates section 8(c) of the
National Labor Relations Act which expressly precludes regulation of
speech about unionization so long as the communication does not contain
a threat of reprisal or force, or promise of benefit. In this case, the business associations clearly objected
to the message the NLRB has ordered them to publish in the
workplace. The poster is one-sided, favoring unionization,
because for example it fails to notify employees of their rights to
decertify a union, to refuse to pay dues to a union in a right-to-work
state, and to object to payment of dues in excess of the amounts
required for representational purposes. Employers do have a right
not to speak, the court held, noting that for example: “…a company official giving a noncoercive speech to
employees describing the disadvantages of unionization does not commit
an unfair labor practice if, in his speech, the official neglects to
mention the advantages of having a union.” The court did not decide whether the Board lacked
statutory authority to issue the notice posting rule—another legal
argument advanced by the business associations. Since the rule
was nullified in its entirety on First Amendment grounds, the decision
did not reach this argument. However, two justices in a
concurring opinion held that the rule was not a valid exercise of the
Board’s statutory authority to issue regulations that are “necessary”
to carry out the provisions of the National Labor Relations Act. Noel Canning Decision Cited In its opinion the court also raised the issue as to
whether the NLRB had a constitutionally appointed quorum of at least
three members when the Board’s notice posting rule was finalized.
In Noel Canning v.
NLRB, decided on January 25, 2013, the same appeals court
held that a recess appointment to the NLRB is constitutionally valid
only if the appointment is made by the President during an intercession
recess of the Senate, to fill a vacancy that arose during the same
intercession recess. Although the NLRB lost its validly-appointed
quorum on August 27, 2011 when the chairman’s term expired, the court
noted the Board did have a valid quorum on August 25, 2011, the date
the rule was officially finalized with its filing in the Federal
Register Office. (On April 25, 2013, the NLRB asked the U.S.
Supreme Court to review the DC appeals court decision in the Noel Canning
case. That petition is pending.) Appeal Pending in South Carolina Case A second notice posting case is pending on appeal in the
Fourth Circuit federal court of appeals. In that case the South
Carolina district court struck down the NLRB rule, declaring “There is
not a single trace of statutory text [in the National Labor Relations
Act] that indicates Congress intended for the Board to proactively
regulate employers in this manner.” (Chamber
of Commerce of the United States v. NLRB).
FSSA TRAINING PROGRAM
The FSSA Training
program is live! If you reserved a spot at the forum invoices
were emailed in May. For questions regarding the training program or to
reserve your space, please contact Vince Mullhausen at FSSA HQ.
2013 FSSA ED SCHOLARSHIP DEADLINE APPROACHING
The FSSA Education
Foundation is now accepting applications for 2013-14
scholarships! For more information please click here.
The deadline to submit applications is June 17, 2013.
FSSA 2014 ANNUAL FORUM - SAN DIEGO
The FSSA 32nd
Annual Forum location is confirmed. Mark your calendar for
February 22 - 25, 2014.
Book your hotel
reservations now at the Loews Coronado Bay Resort by calling
1-800-815-6397 and just mention the FSSA Room Block. FSSA has a
special group rate of $219/per night.
FSSA, the FIRE
SUPPRESSION SYSTEMS ASSOCIATION, is a not-for-profit
drawing members internationally. FSSA is a unique
designer/installers, manufacturers and suppliers working
share ideas and strategies for the benefit of the fire
systems industry. FSSA members are dedicated to
the highest level of
safety, reliability and effectiveness of
special hazards fire
The mission of FSSA
is to promote the use of, and be
the leading recognized authority on,
fire protection systems; employing existing and new
technologies to safeguard people, high-value assets
and the environment.
Interested in passing along information on
FSSA to prospective members? FSSA has printed cards proclaiming
"WHY Join the FSSA" with information on member benefits.
If you would like a stack of cards mailed to you so that you can
distribute them to your colleagues, please contact FSSA