Adams and Reese Partner Brooke Duncan
, a senior member of the firm’s labor and employment practice team, was quoted in the April 16, 2012 version of the CCH Employment Law Daily
newsletter in the article, “DSC: District court strikes down NLRB notice-posting rule as “useful” but not “necessary” and contrary to Board’s “reactive role,” as a federal district court in South Carolina has invalidated the NLRB’s rule requiring employers to post notice in the workplace informing employees of their NLRA rights.
“For over seventy-five years, the NLRB has been nearly unique among federal labor agencies in not requiring employers to post a general notice of employee rights in the workplace,” the court noted. However, when the Board changed course last year and “decided to flex its newly discovered rulemaking muscles,” the agency exceeded its authority. Thus, the court granted summary judgment to the U.S. Chamber of Commerce in its legal challenge to the rule, scheduled to take effect April 30.
“Two courts, looking at essentially the same arguments, yet reaching rather different outcomes.” That’s how Duncan, who is also an Employment Law Daily advisory board member, characterized the rulings. “The South Carolina federal court, in gutting the poster rule completely, sent a strong signal to the Board that it will not tolerate an end run around Congress. If Congress wants to legislate a poster requirement — as it has with numerous other statutes and agencies — it can do so, but it hasn’t,” he said.
In contrast, “the DC court basically upheld the Board in all important respects,” Duncan noted. “Even in denying the portion of the Board’s position that failure to post would be an unfair labor practice, the court did say that all the Board would have to do is make a specific finding that failure to post interfered with an employee’s exercise of rights. This court said that the Board is at the ‘heart’ of labor-management relations, that no tortured reading of the law or mental gymnastics (the court’s phrases) were necessary to find that dissemination of employee rights is within the Board’s bailiwick.”
“The South Carolina court got it right: to allow today’s Labor Board latitude to legislate under the guise of filling ‘statutory gaps’ would give the Board unbridled discretion to advance its own agenda,” Duncan argued. “Silence on Congress’ part is not delegation of authority.”
For his part, Duncan agreed that both decisions will “no doubt” be appealed. “Unfortunately,” he added, “because the Board goes its own way in any jurisdiction that hasn’t told it to stop, I’m telling my clients outside of South Carolina to prepare to post the notice on April 30.”
Hired to build the labor and employment practice at Adams and Reese in 1992, Duncan has helped the firm grow into the 30-plus lawyer team practicing in that area today. He also co-chairs the firm’s New Business Acceptance Committee and serves as one of the firm’s labor and employment lawyers for in-house matters.
Focusing his practice on labor and employment law, he works exclusively on behalf of employers and has experience in union avoidance and union relations. He represents employers in many fields including universities, hospitals, trucking companies, shipyards, restaurants, convention and trade show contractors, manufacturers, insurance brokers and nonprofit organizations.
Duncan is a sought-after speaker who regularly conducts seminars and presentations for clients, employer groups, and trade associations. He is listed in Chambers USA, Best Lawyers® and Louisiana Super Lawyers®. Adams and Reese is a multidisciplinary law firm with offices strategically located throughout the southern United States and Washington, DC. American Lawyer includes Adams and Reese on its distinguished list of the nation's top law firms – “The Am Law 200.” The National Law Journal also includes the firm on the "NLJ 250" list of the nation's largest law firms.