Obama's Constitutionally-Challenged Labor Board Silent After Losing Another Legal Battle

So far, the National Labor Relations Board’s Office of Public Affairs has been unusually quiet since Barack Obama’s constitutionally-challenged NLRB appointees and their union cronies were dealt another blow on Tuesday by the DC Circuit Court of Appeals.

In a decision that impacts nearly every private-sector workplace in America, the D.C. Circuit Court of Appeals ruled on Tuesday that employers are not required to post union rights posters in their workplaces.

Storm trooper NLRB Logo

Though initially proposed in 2010, the issue arose in 2011 when the union-dominated NLRB issued a mandate that would require private-sector employers with two or more employees to prominently display so-called “union rights” posters [view in PDF] in their workplaces. More egregiously, should an employer refuse to post the poster, the NLRB proclaimed, it could be grounds for an Unfair Labor Practice.

The NLRB’s decree drew immediate fire from employers, as well as legal challenges. In April 2012, the DC Circuit Court of Appeals temporarily enjoined the NLRB’s requirement pending the outcome of the legal challenges.

In January, the same Court of Appeals ruled that the current appointees at the NLRB were not constitutionally appointed by the President, making all of the decisions issued since (at least) January 2012 subject to being overturned. Ultimately, the constitutionality of the NLRB’s appointees will be decided by the Supreme Court.

Regarding Tuesday’s ruling, according to the Wall Street Journal:

The five-seat labor board, whose members are mostly Democrats, could appeal the decision, either by seeking Supreme Court review of the decision or asking the entire District of Columbia Circuit to rehear the case.

While the NLRB has remained silent since Tuesday’s decision, an appeal seems highly likely as the decision may potentially be applied to other workplace notices as well, according to one former NLRB attorney:

The three-judge panel wrote, “The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.”

Jeffrey Hirsch, a law professor at the University of North Carolina and a former NLRB attorney, said that employers could apply the court’s rationale to challenge other workplace notices mandated by the Equal Employment Opportunity Commission and the Occupational Safety Health Administration.

Though the NLRB’s silence is unusual based on the agency’s propensity for issuing pro-union press releases and immediately rebuking adverse rulings, there may be a reason for it.

Recently, the NLRB’s pro-union media director, Nancy Cleeland, left the agency to go to work for the Carpenters’ union.

As a result, while unusual, the agency’s silence on Tuesday’s ruling is not likely to last long given the likelihood of an appeal.
“Truth isn’t mean. It’s truth.”
Andrew Breitbart (1969-2012)

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