Red State Falsely Claims NLRB Lacks Authority To Issue Rule On Labor Notification


An August 25 Red State post falsely claimed the National Labor Relations Board (NLRB) "skirt[ed] Congress" by issuing a recent rule requiring employers to notify employees of their labor rights. In fact, the NLRB has legal authority to issue rules which regulate employers under the National Labor Relations Act.

Red State Claims NLRB "Skirting Congress" By Issuing Rule On Labor Rights Notification Practices

Red State: NLRB "Skirting Congress [By] Requir[ing] All Employers Covered by the National Labor Relations Act To Post Union Notices In the Workplace." An August 25 Red State post claimed:

Barack Obama's union appointees at the National Labor Relations Board are continuing their assault on America's job creators with yet another attempt at doing union bosses' bidding by skirting Congress to require all employers covered by the National Labor Relations Act to post union notices in the workplace to advise employees of their ability to unionize their company. [Red State, 8/25/11]

However The NLRB Has Legal Authority To Independently Issue Rules Supporting The Labor Relations Act

National Labor Relations Act (NLRA): The NLRB Can "Make, Amend, And Rescind" Rules And Regulations In Order To Carry Out The Act. Section 6 of the NLRA, grants the NLRB authority to issue rules "to carry out the provisions of this Act. From the NLRA:

The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act. [National Labor Relations Act,, accessed 8/26/11]

Additionally, Jurisprudence Supports The NLRB's Rule Making Ability

Chevron U.S.A., Inc. V NRDC: "The Power Of An Administrative Agency ... Necessarily Requires ... The Making Of Rules." In the majority opinion delivered by Associate Supreme Court Justice John Paul Stevens in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the court cited a previous case to point out that "If Congress has explicitly left a gap for the agency to fill, there is an express delegation ... of authority to the agency to elucidate a specific provision of the statute by regulation." Further, the court ruled that "[t]he power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." [Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., accessed 8/26/11 via Cornell University Law School]

Posted In
Economy, Labor Unions, Justice & Civil Liberties
Red State
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