Out of Bounds: Another Court Smacks Obama NLRB's Overreach On Union Rights Posters

If one were keeping score, one might conclude that the Empire is beginning to crumble…

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In 2010, when Barack Obama’s constitutionally-challenged National Labor Relations Board began proposing an edict to force private-sector, union-free employers to post so-called Union Rights posters. the Board’s lone Republican at the time, Brian Hayes, argued that “the posting requirement is beyond the scope of the Board’s NLRA Sec. 6 power to issue ‘such rules and regulations as may be necessary to carry out the provisions’ of the NLRA.”


In other words, argued Hayes, Congress didn’t give the NLRB the power to require such postings.

On Friday, the U.S. Court of Appeals for the Fourth Circuit agreed with former NLRB member Hayes, the U.S. Chamber of Commerce, as well as the DC Circuit Court of Appeals in ruling [in PDF]) that the NLRB had indeed overstepped its Congressional mandate:

Because the Board is nowhere charged with informing employees of their rights under the NLRA, we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.


The NLRB serves expressly reactive roles: conducting representation elections and resolving ULP charges. As an examination of the Act as a whole makes evident, none of its sections imply that Congress intended to grant the Board authority to issue the notice-posting rule sua sponte.


Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so.

In sum, Congress didn’t give the NLRB the right to force innocent employers to post notices telling employees how to unionize their employer, therefore, Obama’s NLRB is out of bounds.


…And, once again, the NLRB’s usually-active press department is (so far) staying quiet about this one as well.

Here is Friday’s decision, in full.

NLRB Poster Rule Smacked By 4th Circuit by LaborUnionReport

Truth isn’t mean. It’s truth.”
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