Rights of Labor < Tyranny of Capital

by Corey Robin on June 17, 2013

Remember that National Labor Relations Board regulation instructing employers to post notices in their workplaces informing workers of their right to organize under the law? I described this regulation last year:

This is just a requirement that employees be informed of their rights. It doesn’t impose costs on employers, restrict their profits, regulate their operations: it just requires that working men and women be informed of their rights.


The business lobby, led by the Chamber of Commerce, has been challenging this regulation in court. Last year, it persuaded a Republican-appointed federal judge to strike it down. Last week, it had more success, persuading an even higher level of the judiciary—a three-judge panel of the 4th Circuit Court of Appeals—to strike down the regulation as an unconstitutional infringement on the liberty of employers. And it turns out that last month another court of appeals panel, made up entirely of Republican appointees, ruled even more expansively, claiming the same way.) that the provision violated employer free-speech rights as they are said to be protected by § 8© of the National Labor Relations Act.

Here are some highlights from an AP report in last week’s Washington Post:

A second federal appeals court has struck down a rule that would have required millions of businesses to put up posters informing workers of their right to form a union.


A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled Friday that the National Labor Relations Board exceeded its authority when it ordered businesses to display an 11-by-17-inch notice in a prominent location explaining the rights of workers to join a union and bargain collectively to improve wages and working conditions. The posters also made clear that workers have a right not to join a union or be coerced by union officials.


More than 6 million businesses would have been subject to the rule.


The ruling was another blow to the nation’s dwindling labor unions. Last month, another federal appeals court ruled last month that the poster rule violated businesses’ free speech rights.


In that case, the U.S. Court of Appeals for the District of Columbia Circuit sided with the National Association of Manufacturers, U.S. Chamber of Commerce and other business groups who complained that the regulation violated free speech rights by forcing employers to display labor laws in a way that some believed was too skewed in favor of unionization.


There you have it. The government requiring an employer to hang a poster informing workers of their rights is a violation of the employer’s liberty. Employers requiring employees to attend a rally in support of Mitt Romney—or otherwise instructing employees how to vote in an election—is an exercise of the employer’s liberty.

Seems like someone’s liberty is being left out.

{ 28 comments }

1

MPAVictoria 06.17.13 at 2:54 pm

“Seems like someone’s liberty is being left out.”
No one who matters I guess.
/Sigh

2

Christiaan 06.17.13 at 2:56 pm

I guess it’s a cost on employers in that it makes it harder for them to break the law.

3

Anderson 06.17.13 at 3:01 pm

The D.C. Circuit op seemed risible in places, but the 4th Circuit pointed out, sensibly enough, that other agencies have the statutory authority to post such notices, but the NLRB doesn’t.

4

Sandwichman 06.17.13 at 4:00 pm

“The ruling was another blow to the nation’s dwindling labor unions.”

Not if they thought it through.

5

Coulter 06.17.13 at 4:00 pm

“It doesn’t impose costs on employers, restrict their profits, regulate their operations:”

It does impose costs, you just aren’t paying for them, so not surprising you don’t think the burden is too large for them to have to bear. Kinda like my sympathy for folks who can’t google or go to a library. Google publishes in more languages than these posters were printed in anyway …

In any event, the notice did not include any information about employees who wish to democratically change their union, decertify their union, or refrain from paying dues. This was rent seeking from incumbent union leadership, not something for the benefit of workers …

6

OneEyedMan 06.17.13 at 4:00 pm

Anderson seems to have it right. Judges are supposed to judge the law as written, not just decide what they think makes for the best policy.

7

Glen Tomkins 06.17.13 at 4:09 pm

Coulter,

I think you get the Audacious Use of Rent-Seeking as Pejorative award for the week.

Make up your mind. If rent-seeking is a bad thing, we first make the owners disappear, and then there’s no need for union leaders, rent-seeking or otherwise.

8

Sebastian H 06.17.13 at 4:10 pm

What do you think about unions being required to inform members of their right to opt out of contributions to non collective bargaining expenses? I could be misrecalling but I would have sworn that a push for that was portrayed as horrible around here.

9

Dr. Hilarius 06.17.13 at 4:28 pm

The idea that judges are supposed to rule on the law as written is correct but not very meaningful. The law and rules of statutory construction are sufficiently vague and contradictory (“plain language” vs. “absurd result”) to allow a court to reach any number of possible interpretations. No surprise, the favored result is often the one most in line with those in power.

Coulter@5: have you ever actually worked in a factory, assembly plant or similar? There are still a lot of people who don’t use or have access to the internet. To use google to look up employment rights you have to know those rights exist in the first place. As for anti-union rights, have no fear, the Chamber of Commerce is active informing workers of the horrors of unionization. No coincidence it was the South Carolina chamber as co-plaintiff in the 4th circuit case. South Carolina’s economy says more about the costs/benefits of unionization than any court.

10

Anderson 06.17.13 at 5:47 pm

9: here is the 4th Cir. opinion, if you (or others) would like to evaluate its reasoning. The court summarizes its holding:

“We agree with the district court 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 practice 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. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule, and affirm.”

That reactive quality was, I daresay, heavily bargained for in Congress when the Wagner Act was passed. Should the real complaints here be directed vs. the courts, or vs. Congress?

11

Corey Robin 06.17.13 at 7:15 pm

Sec. 156 of 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 [by subchapter II of chapter 5 of title 5], such rules and regulations as may be necessary to carry out the provisions of this Act [subchapter].”

On a brief read-through of that subchapter I don’t see anything in the APA that restricts the NLRB from doing this. And given that the NLRA opens with a resounding affirmation of the right to organize (“protecting the exercise by workers of full freedom of association, self-organization”) and a commitment to redress “the inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract,” it would seem that the NLRB’s rule change could quite easily be construed as being necessary to carrying out the provisions of the Act.

Also, in the Court decision that upheld the NRLA, the majority actually empowered the Board to decide whether or not a particular infringement affected commerce or not: “Whether or not particular action does affect commerce in such a close and intimate fashion as to be subject to federal control, and hence to lie within the authority conferred upon the Board, is left by the statute to be determined as individual cases arise.”

If the Board has the power to decide whether or not the actions of an employer affect commerce, which is not a power explicitly conferred upon it by the language of the statute itself, it seems to me that it easily has the power to notify employees of their rights under the law, particularly since securing those rights is the express purpose of the legislation.

The issue has less to do with the language of Congress than of the courts that are interpreting that language.

12

etv13 06.17.13 at 8:49 pm

You know, there’s a really big difference between a holding that the NLRB lacks the authority to promulgate a particular rule and one that, as stated in the post, the rule unconstitutionally interferes with employers’ liberty. I don’t know whether you think it amounts to the same thing or that eliding the distinction is somehow good rhetoric, but if the courts really had held that the rule was unconstitutional, then neither Congress nor the state legislatures could authorize or make such a rule, and all of the other notice statutes and regulations (including the plethora of such rules in California)would also be in jeopardy. That’s what I thought, reading the post, and it was almost a relief to read the actual decision and find they hadn’t done that at all.

13

Anderson 06.17.13 at 9:09 pm

“as stated in the post, the rule unconstitutionally interferes with employers’ liberty”

I think the D.C. Circuit went there.

14

Anderson 06.17.13 at 9:18 pm

Here’s the D.C. Cir. op. — see e.g. at 12:

Chief Justice Roberts, writing for a unanimous Court, put it this way in Rumsfeld v. Forum for Academic & Institutional Rights, Inc.: “Some of [the] Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.” 547 U.S. 47, 61 (2006). As examples, the Chief Justice cited West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), and Wooley v. Maynard, 430 U.S. 705 (1977).

So requiring an employer, or anyone else, to post a notice is just like forcing a student to recite the Pledge of Allegiance. Among other things, this proves too much – the OSHA notices that the 4th Circuit observes *are* allowed by statute, it seems, would fail under this “compelled speech” rule. Henderson & Brown were sufficiently alive to this nuttiness that, while joining it, they wrote separately to make the argument that the 4th Circuit made in its op.

15

Mike Huben 06.17.13 at 9:46 pm

I suppose next notices that require employees in restaurants to wash hands after using the bathroom will be coming down next, as infringements of employers’ freedoms. It’s a principle thing, you know.

16

etv13 06.17.13 at 10:11 pm

Anderson @ 14: Thanks for the links. I think you’re giving Henderson too much credit. I read “whole-heartedly concur” and “well-reasoned” as indicating she’s every bit as nutty. But maybe you’re just saying they recognize that the 8(c) analysis might not survive Supreme Court review and want the lack of authority argument in the opinion as a fall-back?

I would argue that just as the government can impose time, place and manner requirements on the exercise of free speech rights, it can also constitutionally require certain kinds of speech, and that the NRLB’s notice, like “wash your hands” signs, falls within the scope of that. Wooley v. Maynard didn’t hold, after all, that you could refuse to put a license plate on your car.

17

Anderson 06.17.13 at 10:16 pm

16: “But maybe you’re just saying …” Yes, that.

I think the 4th Cir. op is at least plausible in arguing that the NLRB has no power to impose upon employers in the absence of a charge’s being filed.

18

Anderson 06.17.13 at 10:22 pm

15: I believe those notices are promulgated by OSHA (when not by state agencies), and the 4th Cir. holds that OSHA’s mandate goes beyond the strictly reactive one accorded to NLRB.

Again, we really are talking about a legal argument here, even if it’s ultimately a mistaken one.

19

Jonathan H. Adler 06.18.13 at 2:17 am

You need to actually read the cases you’re commenting on. The Fourth Circuit did not “to strike down the regulation as an unconstitutional infringement on the liberty of employers.” Rather, the court held that the NLRB exceeded its statutory authority. This is also not an accurate characterization of the D.C. Circuit opinion, which also ultimately rested on the court’s interpretation of the NLRA.

And as you want to portray these decisions as ideologically motivated, two of the three judges on the Fourth Circuit panel were nominated by President Obama.

JHA

20

Corey Robin 06.18.13 at 3:32 am

Jonathan at 19: You’re right on two counts. I should have read both opinions in their entirety before commenting on them. And I mis-characterized the 4th Circuit ruling. I too quickly conflated the Washington Post’s characterization of that ruling with DC Circuit ruling from last month. I’ve now fixed the text in the OP.

But I have no idea what you’re talking about when you say that I, following the Post, have mis-characterized the DC Circuit opinion. The entirety of Section 2 of that ruling — which occupies 11 pages of the opinion, fully half of the part of the opinion that adjudicates the issues raised by the case — is dedicated to the claim that the NLRB’s posting regulation is in violation not merely of Section 8c of the NLRA but of the principles of free speech that underlie Section 8c. As the court writes, “Our doubt stems, in part, from a comparison of § 8(c) with the law established under the First Amendment. We approach the question by considering some firmly established principles of First Amendment free-speech law.” It goes onto lay out one of those free-speech First Amendment principles and says “That § 8(c) embraces this principle is certain.” When the court concludes that discussion by saying “We therefore conclude that the Board’s rule violates § 8(c),” then, it is hardly resting its interpretation on the NLRA to the exclusion of the principle of employer free speech: it is concluding an opinion about the nature of an employer’s First Amendment rights as they are embodied and protected by § 8(c).

And *that* part of the decision, which as I say occupies the bulk of the ruling and which the Fourth Circuit panel (made up, as you point out, by a majority of Obama appointees) expressly elected not to follow, was written entirely by three Bush (41 and 43) appointees, including Janice Radway Brown.

21

Corey Robin 06.18.13 at 4:40 am

Oops, Janice Rogers Brown, not Janice Radway [who’s an American Studies scholar!] Brown.

22

Rakesh Bhandari 06.18.13 at 6:24 am

In The Big Squeeze NYT labor reporter Steven Greenhouse gives a good description of the informational disadvantages suffered by union organizers in secret ballot elections.

23

Dr. Hilarius 06.18.13 at 6:46 am

Either court could have reasoned that while the NLRB enforcement powers could only be initiated by an actual complaint, the mandate to prevent violations would permit the requirement that workers be told how to initiate a complaint.

The idea that laws command particular interpretations is silly. Consider the many 5-4 splits by the US Supreme Court; the difference between a majority and a dissent is one vote out of nine. Law is just another sphere of politics with a nod toward precedent.

24

Glenn 06.18.13 at 4:38 pm

I would think the “compelled speech” argument would be extremely difficult to maintain in light of the fact that no one would reasonably understand these posters to be the employer’s speech, at least most posters of this type I’ve ever seen. They usually are quite obviously the agency speaking, and what the agency is doing is, in effect commandeering some convenient space in the employer’s property to more effectively reach the agency’s intended audience. That’s a far cry from compelling someone to recite the Pledge of Allegiance. Indeed, the comparison in the DC Circuit opinion to Barnette is, in my view, frivolous.

By the way, for those suggesting otherwise in the thread, the required notice does include notice of the employee’s rights against unions as well as employers. Read the appendix of the DC Cir. op.

25

Jonathan H. Adler 06.18.13 at 4:59 pm

To say Section 8(c) embodies First Amendment principles is not to say that anything that violates that section would violate the First Amendment. So while the D.C. Circuit did hold that the regulation would infringe upon the speech rights of employers, as provided for in Section 8(c), it did not hold that the poster rule violates the First Amendment. The latter conclusion would require the Court to consider other factors, including the nature of the government’s interest and other means of advancing that interest. Therefore it is not accurate to say the D.C. Circuit held that the regulation was an “unconstitutional infringement on the liberty of employers.”

26

Katherine 06.19.13 at 11:41 am

There’s nothing quite like non-lawyers talking about the law. I suggest a quick read up on Critcal Legal Theory.

27

Memory 06.20.13 at 6:01 am

I have not yet read the opinions, but the quotes from the articles strike me as quite odd.

Since the Chevron decision in 1984, the consistent trend in administrative law has been to defer to administrative agencies regarding the proper interpretation of their own enabling legislation. Indeed, the original language has been broadened to entrench deference even more – except in a few areas, the older Skidmore standard is dead and agencies essentially have to pass a laugh test in terms of justifying how they interpret their own mandate. To read the NLRA this narrowly seems like an impermissible interpretation; it would be interesting to see this go to the Supreme Court, since the right on the present court has generally been supportive of Chevron (arguably because it is usually Republican executive branch appointees twisting statutory mandates written by a past Democratic Congress to ends supported by the right).

28

Jonathan H. Adler 06.20.13 at 12:13 pm

Memory @27 – Chevron deference only applies if the court first concludes the statute is ambiguous. If the language of the statute is clear, the court disregards the agency’s interpretation. Moreover, courts are not supposed to defer to agencies on the question of whether a statute is ambiguous in the first place.

JHA

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