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

Americans for Limited Government General Counsel Nathan Mehrens today issued the following statement praising a ruling by the D.C. Circuit Court of Appeals for overturning a National Labor Relations Board (NLRB) decision that had compelled employers to hang a Board-mandated poster not explicitly provided for under law:"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.

"Interestingly, the court in dicta called into question whether the recess appointment of Craig Becker to the Board was legitimate, assuming without deciding it was constitutionally invalid. But since even without Becker, there was still a Senate-confirmed quorum of Board members, his recess appointment was not at issue in this case. For other cases, however, that likely will not be so.

"All of which underscores the foolishness and arrogance of the White House in making these so-called recess appointments to the Board in the first place — as well as to the Consumer Financial Protection Bureau — when Congress was not even in recess. We expect more rulings will come down in this direction and never again will a president be able to imagine a congressional recess into existence."ALG General Counsel Nathan Mehrens is also a former Labor Department attorney.

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