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Suit Against NLRB to Proceed

Court allows suit filed by three companies on NLRB authority to move forward

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• May 8, 2013 6:15 pm

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The D.C. Court of Appeals will allow several employers to move forward with a lawsuit that would prevent the National Labor Relations Board from ruling on their cases.

Three companies had sued the NLRB on the grounds that it did not have the authority to rule on labor disputes. The motion of consolidation issued by the judges will combine the suits and allow them to move forward with oral arguments scheduled for September.

Glenn Taubman, a lawyer with the National Right to Work Legal Defense Foundation, hailed the victory as another step forward to restoring balance in labor disputes.

"The [employer] petitions will shut the board down in these respective cases," he said. "It won’t necessarily shut down the board entirely, but it provides a roadmap for everyone to get the NLRB out of their cases."

The NLRB serves as an arbiter in labor disputes and oversees labor practices and unionism throughout the country.

Numerous legal challenges to the board’s ability to issue rulings emerged after the D.C. Court of Appeals ruled in January that President Barack Obama’s recess appointments of union lawyers Richard Griffin and Sharon Block were unconstitutional. The NLRB has pledged to continue issuing rulings until the Supreme Court weighs in on the issue.

The board’s defiance drew harsh criticism from Republicans on Capitol Hill.

The House of Representatives passed legislation to shut down the board in April. That bill is unlikely to pass the Senate and would likely be vetoed by Obama.

Taubman said the D.C. circuit provides the quickest route to halting the operation of the constitutionally dubious board. He praised the court for "no longer sitting on their hands, waiting for the Supreme Court."

"This law was settled in the D.C. circuit," he said. "It’s your decision, it’s good law issued by your circuit, now it’s time to take your decision seriously and enforce it."

The ruling came the same day a separate D.C. appeals court panel tossed out a NLRB ruling that forced employers to post notices informing workers of their right to unionize while leaving out information about their right to opt out of union dues. The NLRB decided companies that did not put up the signs could be charged with unfair labor practices and punished by the board. The court ruled that the punishment infringed on an employers’ freedom of speech.

"The court decided that the right to free speech includes the right to be silent, in this case by not putting up a sign; the government was trying to force companies to speak [the government’s] views," said David Phippen, a labor attorney with Constangy, Brooks, and Smith. "NLRB had never done anything like that to all employers before."

The NLRB had unilaterally decided that it had the regulatory authority to order nearly every American workplace to put up the posters. Two of the three appeals court justices questioned this authority.

"Congress never gave [the NLRB] the power to do this," Taubman said. "The posting rule was just a way to get more employees into the unions at the behest of Obama and the big union bosses."

Taubman said the NLRB’s inability to successfully defend their rulings in appeals courts, as well as the legal challenges to its authority, cast serious doubts on its integrity.

"There is a huge, huge legitimacy problem here; every decision is suspect," he said. "Everybody knows there’s a cloud hanging over this board; it’s never been held in lower esteem."