Another Blow to Obama's NLRB
By Casey Given
Little over three months after its quorum-crushing Noel Canning decision, the U.S. Court of Appeals for the District of Columbia delivered another blow to the National Relations Board today. Delivering the ruling in National Association of Manufacturers v. NLRB, the Court nullified the Board’s August 2011 rule requiring all six million businesses under its jurisdiction to display a government poster notifying workers of their right to unionize.
While NLRB rulings and controversy have historically gone hand in hand, the posting rule is one of most criticized regulations the Board has issued under the Obama administration. Critics like the plaintiff lambasted the poster for its blatant labor bias, noting that it notifies workers of their right to unionize while omitting “their right to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of union dues in excess of the amounts required for representational purposes.”
As if that wasn’t bad enough, the posting rule also declared that an employer’s failure to display the sign was an unfair labor practice subject to penalty. This ultimately would be the rule’s undoing, as the D.C. Court of Appeals ruled that this coercion infringed upon “the First Amendment… right of employers (and unions) not to speak.” By coercing companies to post a one-sided enumeration of workers’ rights, the Board infringed upon the employer’s right not to speak.
Unsurprisingly, the Court also clarified how the ruling relates to its Noel Canning decision. In January of this year, the Circuit ruled that NLRB did not have a quorum to issue decisions when it issued its ruling in Noel Canning. According to the Supreme Court in a 2010 ruling, the NLRB must have three members to issue rulings. The Circuit Court found that President Obama improperly used his recess appointment power meaning that the NLRB did not meet the quorum requirements as laid out by the Supreme Court..
Although Noel Canning could potentially overturn over one year of NLRB rulings, the D.C. Court of Appeals mentioned that National Association of Manufacturers is not subject to Noel Canning because the rule was issued in August 2011 before the quorum problem arose.
Nonetheless, this ruling is a major victory for American businesses that have been strangled by the NLRB’s burdensome regulations for far too long. From ambush elections to microunions, the NLRB under the Obama administration continues to infringe upon employers’ rights to run their business as they see fit within the confines of the law. As Bernie Marcus, co-founder of Home Depot, wrote in a recent Wall Street Journal op-ed, “Today, many job creators are being punished for doing business. Confiscatory taxes. Suffocating regulations. Stifling energy costs… Now they must also endure a rogue agency… How are they supposed to have the confidence to invest and create jobs?”
Although the Board continues to issue rulings that undermine regulatory stability for America’s businesses, at least today the court stepped in to block its abusive rule making.