Rights of Labor v. Tyranny of Capital

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. (It It turns out that last month another court of appeals ruled the same way.) even more expansively, claiming that the regulation violated employer free speech rights as they are said to be embodied in Section 8c of the National Labor Relations Act. (That opinion is here in pdf.)

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.

Update (11:45 pm)

Thanks to a commenter over at Crooked Timber, I have corrected some errors I made in this post. I hadn’t read the entire two opinions before commenting here, which I should have. Instead I relied on the Post report and also wrongly conflated the 4th Circuit Court opinion of last week with the DC Circuit Court opinion from last month. My apologies.

11 Comments

  1. Scott Lemieux (@LemieuxLGM) June 17, 2013 at 10:44 am | #

    The D.C. Circuit issued a similar ruling last month. It’s worth noting as well that the executive branch is permitted to require notice of the right not to join a union be posted: http://prospect.org/article/dc-circuit-v-worker-rights

  2. Michael June 17, 2013 at 10:51 am | #

    Corey: Re: Tyranny of Capital

    Etymology of mortgage—from Old French a dead hand..a hand reaching from the crypt

    Michael@pranzosantafe.com

    _____

    • ed scott June 17, 2013 at 12:16 pm | #

      “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 …—or … employees how to vote in an election—is an exercise of the employer’s liberty.”

      While the second sentence above violates my idea of American rights, the first sentence seems a paltry, counter-productive antidote.
      It reminds me of the mandated financial disclosures that go directly into my garbage, making every investor his own regularity agency while the SEC is incapable preventing abuse.

      • jonnybutter June 17, 2013 at 1:33 pm | #

        It reminds me of the mandated financial disclosures that go directly into my garbage, making every investor his own regularity agency while the SEC is incapable preventing abuse.

        I would be shocked if Prof. Robin were not in favor of fully funding and fully mandating the SEC to do what it was created to do. You too?

        I think the idea of the post is two things: 1.) to point out how outrageous the letter of the law actually is, and 2.) that this advisement-of-rights poster is such weak tea and is STILL lobbied-away by the Chamber is pretty remarkable. I mean, *somebody* is nervous about this placard, right?

      • ed scott June 19, 2013 at 2:12 pm | #

        IT REMINDS ME OF THE MANDATED FINANCIAL DISCLOSURES THAT GO DIRECTLY INTO MY GARBAGE, MAKING EVERY INVESTOR HIS OWN REGULARITY AGENCY WHILE THE SEC IS INCAPABLE of PREVENTING ABUSE.

        Jonnybutter, I agree about Corey who I admire.

        I also like your description “weak tea”

        But more, there’s something profoundly misdirected about notices of rights as a substitute for enjoying those rights and disclosure statements to normal people requiring them to become more astute in extraneous matters than professionals whose livelihood it is, instead of going about living “life, liberty and happiness”.

        It’s a distraction from where the focus should be, and an effective way to dissipate that focus; really, can’t you understand a local business person complaining about producing piles of paper that head straight to recycling or posting signs that could directly prejudice his employees against his interests, while from the other point of view, the employees are going to abide by local social pressure anyhow, and those who don’t will unjustly suffer anyhow. No interest is served from this masquerade of American democracy.

        You know, as we all try to get along without oppressing others or being oppressed ourselves, we expect the benefits of living in society to make this easier. That’s the role of government, doing things we can’t possibly do individually, like insuring equal opportunity, equal justice, best economic structure for the general good and National defense. That explains a little better my reticence to embrace posting of rights which seem more the foliage than the trunk.

        I’d be interested to read a contrary or mitigating argument.

  3. jonnybutter2 June 17, 2013 at 11:08 am | #

    Etymology of mortgage—from Old French a dead hand..a hand reaching from the crypt

    My old Websters says ‘gage’ means ‘pledge’. fwiw.

    • Blinkenlights der Gutenberg June 20, 2013 at 9:04 pm | #

      Mortgage Mort”gage (m[^o]r”g[asl]j; 48), n. [F. mort-gage;
      mort dead (L. mortuus) + gage pledge. See {Mortal}, and
      {Gage}.]

      1. (Law) A conveyance of property, upon condition, as
      security for the payment of a debt or the preformance of a
      duty, and to become void upon payment or performance
      according to the stipulated terms; also, the written
      instrument by which the conveyance is made.
      [1913 Webster]

      Note: It was called a mortgage (or dead pledge) because,
      whatever profit it might yield, it did not thereby
      redeem itself, but became lost or dead to the mortgager
      upon breach of the condition. But in equity a right of
      redemption is an inseparable incident of a mortgage
      until the mortgager is debarred by his own laches, or
      by judicial decree. –Cowell. –Kent.

  4. jasdye June 17, 2013 at 1:06 pm | #

    Reblogged this on Leftcheek deuce and commented:
    And having a cop read you your Miranda Rights is infringing upon his Free Speech as well.
    Amirite??

  5. zenner41 June 17, 2013 at 8:27 pm | #

    This is another piece of the general rightie strategy of shoving unions into the memory hole. No one is supposed to remember that there once were such organizations. Of course, the nation’s schools are enthusiastically contributing to this effort. What do you suppose most school kids are learning about the history of unions in the U.S.? About as much as they are learning about evolution in their science classes, I bet.

    • Blinkenlights der Gutenberg June 20, 2013 at 9:07 pm | #

      I know a former teacher who was teaching union history in high school, and considered this to be an act of rebellion.

  6. sadbillionaire June 18, 2013 at 10:05 pm | #

    Jesus Christ these Volokhians are tedious and relentless. God forbid they actually ever engage with the spirit, as well as the letter, of the law.

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