The NLRB's Unfair Labor Practice; the Agency Persists in Ignoring the Law

Article excerpt


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. …