The Wall Street Journal applauded another anti-worker decision of the extremely conservative U.S. Court of Appeals for the D.C. Circuit and touted its escalating attacks on the National Labor Relations Board.
The D.C. Circuit is considered second only to the Supreme Court in importance because it has jurisdiction over the bulk of challenges to government action and regulations ranging from national security to environmental law. It is currently skewed to the far right, due to a highly successful court-packing effort by the Republican Party. The results have been predictably devastating for government protections that offend big business sensibilities.
The National Labor Relations Board (NLRB) - frequent bogeyman of the right - has been a victim of this ideological bias, and the WSJ highlighted the D.C. Circuit's radical decision invalidating the president's last two nominees to the NLRB when commentating on a more recent judicial “smackdown” of worker rights. From the WSJ:
[T]he D.C. Circuit Court of Appeals, ruling in National Association of Manufacturers v. National Labor Relations Board, struck down the NLRB's diktat that businesses put up pro-union posters in the workplace. That, the court said, violated employer free speech rights in place since Congress's 1947 Taft-Hartley Act. It got worse.
Before even getting to the heart of his opinion, Judge A. Raymond Randolph wrote, “Although the parties have not raised it, one issue needs to be resolved before we turn to the merits of the case.” That “one issue” is of course the now-famous Noel Canning case, the D.C. Circuit's January opinion which held that President Obama's non-recess recess appointments to the NLRB were illegal, and thus hundreds of past and current NLRB rulings are illegitimate. While the poster rule was not affected by Canning, the appeals court felt the need to remind the NLRB of its current, weak status. Ouch.
The specific case that the WSJ used to attack the legitimacy of the NLRB in general, National Association of Manufacturers, is disturbing in its own right, if sadly typical of an appellate court that has proven to be hostile to regulations that seek to curb corporate excess. Utilizing a strained reading of the First Amendment, the D.C. Circuit held that a NLRB rule that required employers to display a notice informing workers of their rights under the National Labor Relations Act (NLRA) of 1935 impermissibly compelled employer speech.
Because the NLRA is a law that protects workers' right to collectively bargain, any effort to explain it would by necessity have to explain the legality of unions. It was this government advisory of long-standing worker rights that the WSJ smeared as a "diktat that businesses put up pro-union posters." The WSJ did not bother to mention that the notice not only explained “pro-union” law like the NLRA, but also specifically advised that workers can "[c]hoose not to do any of these activities, including joining or remaining a member of a union." Thus, the WSJ is cheering on a D.C. Circuit opinion that isn't just anti-union, but one that keeps employees in the dark altogether.
Beyond the ramifications for an educated workforce, however, it is the First Amendment implications that have court-watchers even more concerned. The compelled speech reasoning that led the D.C. Circuit to uphold the right of employers to block government efforts to advise their employees of statutory rights could easily be extended beyond the NLRA. As reported by Reuters, this finding of an employer's right to not inform its workers of their rights to join - or not join - a union could apply to other public service advisories:
In a decision that could inspire challenges to other mandated workplace postings, a federal appeals court has found that a National Labor Relations Board rule requiring employers to notify workers of a right to unionize violated protected speech rights.
[...]
Jeffrey Hirsch, a law professor at the University of North Carolina and a former NLRB attorney, said that employers could apply the court's rationale to challenge other workplace notices mandated by the Equal Employment Opportunity Commission and the Occupational Safety Health Administration.
“But there may not be as much hunger to go after those notices,” he said. “They've been around for decades and everybody is used to them.”
But Hirsch's optimism that anti-regulatory advocates might be shy from using the D.C. Circuit's roadmaps for challenging government action appears to be belied by the Noel Canning opinion that the WSJ praised, an opinion completely unnecessary for the holding of National Association of Manufacturers. Instead, citing Noel Canning served no purpose rather than as a reminder of Republican success at fueling a judicial vacancy crisis and overturning precedent.
Taking advantage of Democratic compromise during the last administration to confirm very conservative judges to the court, the GOP has now engaged in unprecedented obstruction of all of the current president's judicial nominees, a blockade that has kept the D.C. Circuit controlled by Republican appointees. The infamous Noel Canning opinion is perhaps the prime example of the D.C. Circuit's subsequent anti-regulatory tear. Reaching beyond its normal fare of gutting the intent of progressive legislation and striking down accompanying regulations, Noel Canning took it upon itself to reinterpret the recess appointment powers under the Constitution, thereby rendering suspect hundreds of recess appointments and untold decisions of these appointees dating back centuries.
The D.C. Circuit's Noel Canning reference was basically just an invitation for more challenges to NLRB decisions, a call that has already been heeded. This new anti-worker decision, therefore, is the least of labor's problems. The pressing need to confirm a more balanced judiciary - especially on the D.C. Circuit - once again becomes self-evident for everyone concerned about corporate control of the courts.