George F. Will: The NLRB's school-door stand

Published: May 23, 2013
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WASHINGTON — Early in an opinion issued recently by a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, Judge A. Raymond Randolph says: “Although the parties have not raised it, one issue needs to be resolved before we turn to the merits of the case.” The issue he raised but could not resolve — that is up to the Supreme Court — illuminates the Obama administration's George Wallace-like lawlessness. It also demonstrates the judiciary's duty to restrain presidents who forget the oath they swear to “preserve, protect and defend the Constitution.”

The appeals court was deciding whether the National Labor Relations Board has the power to issue the rule requiring nearly 6 million private-sector employers to post notices informing workers of their right to join a union. Failure to post the notice would be, the NLRB says, an “unfair labor practice,” equivalent to interfering with, restraining or coercing employees.

The regulation of speech about unionization has been tightly restricted for many decades. In 1947, Congress amended the National Labor Relations Act with this: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this (act), if such expression contains no threat of reprisal or force or promise of benefit.” The Supreme Court had already held that employers have First Amendment free-speech rights to engage in non-coercive speech about unionization.

In the recent case, the NLRB argued that the required posting is its own speech, not the speech of any employer. The appeals court disagreed, and cited some “firmly established principles” of free-speech law, including “the right to decide not to disseminate” the speech of others. The Supreme Court has hitherto held that it is unconstitutional to force students to salute the flag. And the court has said “freedom of speech prohibits the government from telling people what they must say.” Otherwise the First Amendment, “which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” Just because the NLRB wrote the required posting does not make it merely “government speech” rather than the coerced speech of employers who are compelled to disseminate it on their premises.

So the NLRB's rule requiring the posting was illegitimate. But, then, everything the NLRB, as currently constituted, does is illegitimate because two of its members were put in their seats by an unconstitutional act by President Obama.