The impish lexicographer Ambrose Bierce defined a lawyer as someone “skilled in the circumvention of the law.” By that reckoning, the lawyers at the National Labor Relations Board (NLRB) are among the most experienced lawyers in town.
Last week was to be the deadline for businesses to begin posting pro-union posters in the workplace. The NLRB had ordered this done, but the U.S. Court of Appeals for the District of Columbia Circuit intervened, determining the board had no legal authority to do so. The judges rejected the argument that businesses promote “unfair labor practices” simply by refusing to promote a cause with which they strongly disagree.
Judge A. Raymond Randolph pointed out that “freedom of speech includes both the right to speak freely and the right to refrain from speaking at all.” The ruling corrects a clear-cut violation of the First Amendment.
The Court of Appeals reiterated the concern it had raised in January over the fundamental problem that the board itself is not validly constituted. The case, Canning v. National Labor Relations Board, concluded that President Obama violated the Constitution when he appointed board members while the Senate was in session without the advice and consent of the Senate.
Of course, anyone trying to circumvent the Constitution won’t be troubled by ignoring the ruling of the second-highest court in the land. Board Chairman Mark Gaston Pearce has been proceeding as if the ruling had never been made. “We keep our eye on the prize,” the chairman recently said, and he promoted a rule requiring employers to turn over private employee information including home addresses, emails and phone numbers to union organizers. The board has tried to punish companies for opening production facilities in right-to-work states. The board is now trying to cut in half the required time between the union filing for an election and the actual election. The change would set up an “ambush election” preventing employers from fully making their case. This would serve the interest of union bosses, not the employees and not the public.
Mark Mix, president of the National Right to Work Committee, hit it on the head when he said, “The Obama NLRB is determined to make union-organizing campaigns as one-sided as possible and to stifle the rights of employees who may oppose bringing a union into their workplace.”
The courts have done an effective job of telling the NLRB to stop what it’s trying to do to skew the process. If the NLRB won’t follow the law, Congress could consider citing an unfair labor practice, abolish the agency, and save taxpayers $300 million a year. The National Labor Relations Board is a New Deal relic that has outlived its purpose.
The Washington Times