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Obama appointee upholds controversial NLRB rule

By Michael P. Tremoglie | Mar 2, 2012

Berman Jackson

WASHINGTON (Legal Newsline) -- A federal judge appointed by President Obama has upheld the National Labor Relation Board's power to enforce its controversial rule requiring employers to post employee rights notices.

Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia, issued the ruling Friday. Several business associations and the National Right to Work Legal Foundation sued the NLRB claiming it exceeded its authority.

The National Association of Manufacturers, the National Federation of Independent Business and others as well as the NRWF filed the complaint against the NLRB.

The plaintiffs alleged that the NLRB's proclamation of the rule titled "Notification of Employee Rights Under the National Labor Relations Act," exceeded its authority under the National Labor Relations Act and was in violation of the Administrative Procedure Act. They also claimed that the rule violated business owners' First Amendment right to refrain from speaking.

"The NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule - the notice posting provision," Berman Jackson wrote in her opinion. "But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law."

"It is unfortunate that the court rubberstamped the Obama NLRB's rule, giving union bosses another tool to push workers into forced union dues ranks, and threatening employers if they don't display biased pro-compulsory unionism propaganda on their property," said Patrick Semmens, the Legal Information Director of the NRWF.

Semmens said the judge has effectively required every employer to post "biased notices about workers' rights." He clarified what he meant by bias.

"The bias is that the notice does not state the employee's rights to refrain from joining a union," he said. "National Right to Work Foundation plans to appeal the court's decision."

The NFIB was also dissatisfied with the judge's opinion. However, they did find something to like about the ruling.

"We are grateful that the judge found that the NLRB could not create their own unfair labor practice by not posting the workers' rights notice," said Karen Harned, Executive Director of the NFIB Small Business Legal Center. "But although the judge did disallow the rule about making an unfair labor practice for not posting the notice, she did say that not posting it could be evidence of illegal activity. The NFIB is concerned that businesses can be subject to frivolous lawsuits for not posting the notice."

"The problem was that the NLRB does not have rulemaking authority," she added. "We think that they are dramatically overstepping their authority according to the National Labor Relations Act (NLRA)."

Semmens said that it is disconcerting that the judge allows the act of not posting as evidence of anti-union activity. He thinks this will permit the NLRB to arrogate power they do not have.

Berman Jackson was appointed by Obama in 2010. She was confirmed 97-0 by the Senate in 2011. When asked about this, Semmens said he was not sure if that were a factor.

"This ruling certainly favors unions and President Obama favors unions," he said. "But it has not been established if there is a cause and effect between President Obama's appointment of this judge and this ruling."

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