D.C. Circuit Court of Appeals Overturns NLRB Poster Ruling

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D.C. Circuit Court of Appeals overturned a National Labor Relations Board (NLRB) mandate forcing employers to post pro-union posters or face unfair labor charges.

These posters would tell employees about their right to unionize, without informing them of any of the potential drawbacks. Any employer could be charged with an unfair labor practice simply for not posting the flyer.

Americans for Limited Government’s Nathan Mehrens had this analysis:

The court made the right decision here, finding the Board cannot make the failure to post a Board-mandated poster an unfair labor practice because, among other reasons, the Board could not make an employer’s speech advising employees that they do not have to join a union an unfair labor practice. Also, because the poster requirement had no basis in the statute itself, the court ruled the Board cannot just make up what it deems to be an unfair labor practice and then compel employers to abide by their arbitrary definition.

The court also tossed the tolling provision in the rule and held that because the Board wouldn’t have promulgated the rule without those provisions that the rest falls also. Two judges would have gone even further to hold that the Board lacks the statutory jurisdiction to promulgate the rule in the first place.

Mr. Mehrens went on to say that while the court did bring up and dismiss the issue of the unconstitutional appointees, it was only dismissed because there was still a quorum of constitutionally-appointed judges. This means that there may still be other future cases where the unconstitutionally appointed judges are called into question, as in the Noel Canning case.

The case may not fully prevent the NLRB from trying to bring up the poster issue in the future. The NLRB board may decide to ask employers to hang these posters again- as long as there’s no enforcement of the rule. Without enforcement, this mandate will have no teeth and is not likely to see much adoption by non-union employers.

This adds to the continuing saga of issues with the National Labor Relations Board. It also gives credence to the argument that the Board has become extremely partisan. Many of their decisions have been tilted towards unions and against employers- a dangerous balance in a recovering economy.

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