The D.C. Circuit issues a double smackdown to the politicized agency.
Wall Street Journal
Tuesday was a tough day at the office for President Obama's National Labor Relations Board. First, three judges on the 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 2011 rule required some six million employers to affix notices in their workplaces, and on their Internet sites, informing employees of their legal union "rights" on everything from collective bargaining to wearing union "hats, buttons, t-shirts and pins" at the office.
Alas for the NLRB's overreachers, the Supreme Court has held on many occasions that freedom of speech prohibits the government from telling people what they must say. Such "compelled speech" is exactly what the NLRB was demanding. And while Judge Randolph found the First Amendment violation sufficient to kill the rule, his fellow judges wrote a concurring judgment that the NLRB lacked the authority to issue it in the first place.Since the Canning decision in January, the Obama NLRB has brazenly ignored the court's ruling, continuing to pump out pro-labor decisions. Tuesday's smackdown should be a prod for the Supreme Court to take up the Noel Canning case, which the Obama Administration only bothered to appeal in mid-April. The White House's defiance of the courts is creating mass confusion in business-labor relations, which is not helped by poorly crafted and politicized regulations like the poster rule.
