Posts Tagged ‘National Labor Relations Board’

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.

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 […]

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NLRB Asks Supreme Court to Overrule DC Circuit’s Decision

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NLRB petitions the Supreme Court for a Writ of Certiorari, or review, of a D.C. Circuit Court ruling that Obama’s NLRB nominees were unconstitutional.

Today, the National Labor Relations Board (NLRB) has filed its petition for U.S. Supreme Court review of the Noel Canning decision. This decision found that Obama’s “recess” appointments to the NLRB were unconstitutional because the appointments did not occur during “the Recess of the Senate”, not “a” recess, meaning an intra-session “recess” doesn’t count, and the vacancies did not “happen during the recess of the Senate.”  Additionally, the Senate was holding pro-forma sessions at the time.

The NLRB’s petition comes at the last possible day that it could be filed, something which has come to be expected of the NLRB. The petition goes into the details of the case, and tries to make the case that since there was no Senate business being conducted during the “pro-forma” sessions, Obama was correct to be able to make appointments during this time.

This goes against the precedent set by the previous administration, where pro-forma sessions were conducted fairly often in order to prevent President George W. Bush from making recess appointments during that time. President Bush had acknowledged and respected the pro-forma sessions, as had President Obama before this point.

Up until now, the NLRB’s position has been that the D.C. Circuit Court’s decision only dealt with the specifics of the single case that was brought before it, but the Supreme Court would have the ability to make a much more sweeping decision.  A sweeping decision could have massive impacts on NLRB cases across the board, which number in the hundreds at this point. These include everything from union elections to the controversial decisions about social media policy.

If the Supreme Court were to find that the members of the NLRB that Obama had appointed were indeed unconstitutional, under the New Process Steel v. National Labor Relations Board case, the decisions made during the time would have to be voided given that there would not have been a quorum of the NLRB present at that time. This may result in a large number of cases that would have to be redone.

Obama’s appointees to the NLRB made some very controversial and anti-employer decisions, which have had an impact on the way some businesses have conducted themselves lately. While some companies may take the position that it’s better to cut their losses at this point, having the chance to re-hear some of the more controversial decisions will definitely help business in the long run. Regardless, the Supreme Court’s ruling will put an end to the uncertainty created by these unconstitutional appointees..

 

NLRB petitions the Supreme Court for a Writ of Certiorari, or review, of a D.C. Circuit Court ruling that Obama’s NLRB nominees were unconstitutional. Today, the National Labor Relations Board (NLRB) has filed its petition for U.S. Supreme Court review of the Noel Canning decision. This decision found that Obama’s “recess” appointments to the NLRB […]

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40 Senators ask Unconstitutional NLRB Appointees to Step Down

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Following the statement of the National Labor Relations Board that they will not abide by the unanimous opinion of the D.C. Circuit that the appointment of three of their Members to the NLRB was unconstitutional, 40 Senators led by Sen. Orrin Hatch have signed a letter to the NLRB demanding that these appointees step down immediately:

We write to insist that you immediately leave the National Labor Relations Board, withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold, as your purported appointments have been found constitutionally invalid. … ˜The right course of action is for you to leave the Board immediately and cease acting in an official capacity that you legally lack, and for the President to nominate new individuals and allow the Senate to provide its advice and consent. We urge you to do so.

We certainly agree with Sen. Hatch’s sentiment here, however unlikely it may be to elicit action from the appointees. However, it is encouraging to see signs from this many senators that they would not have confirmed these nominees.

Getting the NLRB’s unconstitutional appointees to step down is only the first step to NLRB Reform though. Real reform of the NLRB must address the root issues with the National Labor Relations Act. That’s why we here at Reform the NLRB have prepared the NLRB Reform action plan, which you can freely download here.

Orrin-Hatch-Press-Release-NLRB-step-down

Following the statement of the National Labor Relations Board that they will not abide by the unanimous opinion of the D.C. Circuit that the appointment of three of their Members to the NLRB was unconstitutional, 40 Senators led by Sen. Orrin Hatch have signed a letter to the NLRB demanding that these appointees step down […]

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VIDEO: Obama’s NLRB Appointments Ruled Unconstitutional by Federal Appeals Court

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Americans for Limited Government’s Nathan Mehrens made an appearance on a Fox News Special Report to discuss the federal appeals court ruling that Obama’s NLRB appointments were unconstitutional. See the video for more:

“Since August of 2011, you have not had a three-member board that has been confirmed by the Senate. And so under the Supreme Court’s decision in New Process Steel, this means that all those decisions are void.”

For reference, the New Process Steel case (New Process Steel v. National Labor Relations Board) held that the National Labor Relations Act (NLRA) requires that the NLRB must maintain at least three members to be able to issue decisions.

The NLRB has issued over 200 rulings since Obama’s unconstitutional appointments which could come under scrutiny and even be overturned. This is great news for companies targeted by the NLRB’s pro-labor appointees, but the decision is not final, the Supreme Court may hear the case to issue a final opinion on these decisions.

Unfortunately, simply overturning these cases will not be enough. Without serious reforms enacted to the NLRA and NLRB, Obama will simply find more pro-labor appointments to enact the same anti-employer decisions as before.

Be sure to download the NLRB Reform action plan for more information about what Americans for Limited Government is doing to stop the NLRB from damaging the economy further- treating the disease, not just the symptoms.

Nathan Mehrens from ALG on Obama's Unconstitutional NLRB Appointments

Americans for Limited Government’s Nathan Mehrens made an appearance on a Fox News Special Report to discuss the federal appeals court ruling that Obama’s NLRB appointments were unconstitutional. See the video for more: “Since August of 2011, you have not had a three-member board that has been confirmed by the Senate. And so under the […]

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