3Board’s rule violated the National Labor Relations Act and theFirst Amendment to the Constitution.The Board’s action departs from its historic practice. Fromits inception in 1935, the Board has exhibited a “negativeattitude” toward setting down principles in rulemaking, rather than adjudication.
Bell Aerospace Co. v. NLRB
, 475 F.2d 485,496 (2d Cir. 1973) (Friendly, J.),
aff’d in part, rev’d in part
, 416U.S. 267 (1974);
R. Alexander Acosta,
Rebuilding the Board: An Argument for Structural Change, Over PolicyPrescriptions, at the NLRB
, 5 FIU
. 347, 351 (2010);Jeffrey S. Lubbers,
The Potential of Rulemaking by the NLRB
411 (2010). Despite its “broad” rulemakingauthority under § 6 of the National Labor Relations Act,
Am. Hosp. Ass’n v. NLRB
, 499 U.S. 606, 613 (1991), the Board had “used rulemaking as a means of announcing—or considering—its policies on only a few occasions” until 1989,the year in which it issued the substantive regulation upheld in
21 (2d ed. 2004).The path leading to the posting rule goes back to 1993 whena law professor petitioned the Board.
75 Fed. Reg. 80,410,80,411 (Dec. 22, 2010). Despite prodding from this law professor and, later, several others, the Board declined to act.Then, in 2010, the Board issued a notice of proposed rulemaking.
at 80,410. After receiving more than 7000comments, the Board published a final rule on August 30, 2011,with Member Hayes dissenting. 76 Fed. Reg. 54,006.The final rule provides that “[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places,informing them of their NLRA rights, together with Board contact information and information concerning basic