As the U.S. Supreme Court mulls the constitutionality of President Obama’s national health care law, a federal court has halted another attempted power grab by his administration. Last August, the National Labor Relations Board, which Obama packed with union lawyers from the private sector, issued a new rule requiring 6 million businesses to hang up posters advertising workers’ rights to organize.
The posters themselves read like a marketing campaign for unionization. Out of seven bullet points on the poster, the first six explain collective bargaining rights under the National Labor Relations Act, including the rights to strike and picket. Only the last point informs workers of their right not to join a union.
Regardless of the content of the poster, the problem is that the NLRB, an administrative body set up to make sure businesses and unions abide by the National Labor Relations Act, has no authority to impose such a requirement, given that Congress never created it.
Under the rule, if an employer does not take the action of hanging up the sign, it is considered an “unfair labor practice,” even in the absence of any evidence that the business owner did anything coercive.
In his dissent when the rule was issued, the NLRB’s sole Republican, Brian Hayes, argued that the requirement exceeded the panel’s rule-making authority. The dissent quoted Justice Antonin Scalia, who wrote in a 2001 Supreme Court opinion, “Agencies may play the sorcerer’s apprentice but not the sorcerer himself.” In his conclusion, Hayes wrote that, “I am confident that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.”
Eight months later, Hayes is on the path to vindication. Last Friday, U.S. District Judge David Norton of South Carolina ruled that “the Board, in promulgating the final rule, exceeded its authority.” In his opinion, Norton noted nine examples of Congress passing labor laws in which it required the posting of some sort of notice, but the National Labor Relations Act, which the NLRB is chartered with enforcing, did not.
He concluded that in absence of a law enacted by Congress, the NLRB could not create such a requirement.
The rule was supposed to take effect on April 30, but because Norton’s ruling conflicted with another lower court decision upholding the rule, the U.S. Court of Appeals for the District of Columbia issued an injunction, blocking implementation of the rule until the legal issues are resolved. The NLRB has announced it will appeal Norton’s decision.
It’s important to recognize that the union poster rule is just part of a broader pattern for the Obama administration, which has sough to reward its union allies at every opportunity. Having seen private sector union membership dwindle for decades to 6.9 percent, unions realize that their only hope of survival is to enlist the government’s aid.
When Obama couldn’t get enough votes for “card check” legislation, which would deny workers a secret ballot on unionization (to make it easier for labor bosses to intimidate workers into forming unions), he fought back on the regulatory front. Obama’s NLRB has sued Boeing for opening a nonunion factory in South Carolina. He has issued a rule calling for expedited union elections that don’t give businesses adequate time to present their case to workers. The poster rule is just another part of this overall pattern.
Obamacare’s individual mandate to purchase health insurance is in many ways different from the union poster rule, but both are examples of the Obama administration exceeding its authority in order to achieve its liberal policy goals. Let’s hope that in the coming months, the courts curb these abuses.
Philip Klein is senior editorial writer for The Examiner. He can be reached at [email protected].
