NLRB: One Step Back, Two Steps Forward

Last Friday another court struck down the NLRBs “poster rule” a requirement on employers to prominently display a notice of employee union rights.

The U.S. Court of Appeals for the Fourth Circuit determined the Board acted outside of its authority in issuing the regulation.  In its decision, the court found:

…that the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practices charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition.

Clearly, the poster rule is proactive and beyond the scope of the agency’s power. The regulation would have forced all employers subject to the National Labor Relations Act (NLRA) to post a “Union Rights” notice at work explaining employees’ rights under the Act – even non-coercive talks about unionization with employees could be an offense punishable by the Board. Last and worst, noncompliance with the rule would mean unfair labor practice charges and the employer would be considered anti-union in future cases before the NLRB.

Already in early May of this year, the DC Circuit Court of Appeals rejected the NLRB’s poster rule on First Amendment grounds. Now with two courts striking down the rule, the NLRB’s last hope to implement its rule is to appeal to the U.S. Supreme Court.

Yet despite this setback, the NLRB is continuing its overreach elsewhere. For one, the Board has continued its assault on religious institutions.

On June 10, the Seattle regional NLRB office allowed adjuncts at Pacific Lutheran University (PLU) the right to unionize. In defiance of the 1979 U.S. Supreme Court decision in NLRB v. Catholic Bishop of Chicago, which declared:

“There would be a significant risk of infringement of the Religion Clauses of the First Amendment if the [National Labor Relations] Act conferred jurisdiction over church-operated schools.”

As a result of the Supreme Court case, religious institutions were granted an exemption from the NLRA’s jurisdiction. The fear was that collective bargaining agreements could infringe on religious decisions over subject criteria and personnel.

Despite PLU exercising its religious exemption, the NLRB rejected its claim (as it has done to other religious schools like Manhattan University, St. Xavier University and Duquesne University) under its determination that the University was not religious enough to gain an exemption from the NLRA.  The Catholic Education Daily reports:

Although Catholic colleges have made similar arguments, the NLRB has insisted on an intrusive “substantial religious character” test to determine jurisdiction over colleges—thereby engaging in the very sort of subjective analysis of colleges’ religious criteria that the Supreme Court sought to avoid. The D.C. Circuit Court—following criteria developed by now-Supreme Court Justice Stephen Breyer—has since instructed the NLRB in 2002 and 2008 to cease using its “substantial religious character” test. Those instructions have thus far been ignored by the NLRB.

Religious First Amendment rights are not the only ones in the NLRB’s cross-hairs. Freedom of the press is similarly on the Board’s chopping block.  In a long running dispute between the Teamsters and Santa Barbara News-Press, the NLRB has sanctioned the paper for firing employees who did not follow its editorial policy. Former writer at News-Press Bill McMorris reports:

The NLRB ordered the Santa Barbara News-Press to reimburse several employees who were dismissed in 2006 from their positions for biased reporting, among other infractions. The fired employees contended that the newspaper threatened “journalistic integrity” and that they were fired because of their attempts to organize under the banner of the Graphic Communications Conference of the International Brotherhood of Teamsters.

The NLRB’s order contradicts a December 2012 D.C. Court of Appeals ruling that found the newspaper was within its First Amendment rights to fire its writers.

“The First Amendment affords a publisher—not a reporter—absolute authority to shape a newspaper’s content,” the appeals court ruled [emphasis theirs]. “‘Journalistic integrity,’ as conceived by the board and the reporters, requires a publisher’s cession of some of its editorial control, the First Amendment precludes government coercion in its name.”

The uncertainty created in these decisions by the rogue NLRB should not even have occurred. Since the January 25, 2013, the NLRB has been acting illegally due to the U.S. Court of Appeals for the DC Circuit decision in Noel Canning v. NLRB. The Supreme Court ruling held the January 4, 2012 recess appointments of three members to the Board were invalid. Therefore without the necessary three member quorum, the NLRB, in theory, lost its authority to issue decisions.

Fortunately, a commonsense bill, Preventing Greater Uncertainty in Labor-Management Relations Act H.R. 1120, has been introduced by Representative Phil Roe that would stop the Board from acting until it has a quorum with constitutionally appointed members.

Unfortunately, it is likely to die in the Senate, where the leadership seems to prefer out of control, unaccountable bureaucrats running the NLRB because they agree with the ideology of those unaccountable, out of control bureaucrats.

At least we know what they value.