Conservative D.C. Circuit Strikes Again, With Pro-Corporate Ruling

May 7, 2013

by Jeremy Leaming

Once again a right-wing controlled federal appeals court has dealt a blow to workers’ rights. The Koch brothers and their staunch defenders of an unwieldy corporate America have yet another court action to celebrate.  

In National Association of Manufacturers v. National Labor Relations Board, a three-judge panel of the U.S. Court of Appeals for the District of Columbia invalidated a rule issued by the National Labor Relations Board (NLRB) requiring employers to post notices containing information about rights pursuant to the National Labor Relations Act (NLRA). For instance a flyer, poster or notice could inform workers of their rights to create a union, engage in collective bargaining, advocate for safe working conditions, or wage a strike. The NLRB rule also stated that companies failing to post such notices were engaging in unfair labor practices.

The three-judge panel, all consisting of Republican-appointed judges, invalidated the NLRB rule, saying it went beyond the Board’s authority, the Los Angeles Times reports. The D.C. Circuit also complained the NLRB rule amounted to government-controlled speech, saying employers covered by the NLRA cannot be forced in all circumstances to post or disseminate workers’ rights spelled out under the law. The D.C. Circuit called this “compelled speech” and said the employers “see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees, …, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in the excess of the amounts required for representational purposes.’”

The D.C. Circuit is often considered the second most important court in the country because it hears an array of weighty constitutional matters, including the creation of federal regulations, like those aimed at enforcing the NLRA. The eleven-member court has four vacancies and Senate Republicans have blocked President Obama’s attempts to fill the vacancies. Earlier this year, the Senate, led by Minority Leader Mitch McConnell (R-K.Y.), again blocked the nomination of Caitlin Halligan to a seat on the bench. She has subsequently withdrawn her nomination.

The Senate Judiciary Committee has conducted a hearing on another Obama nominee to the D.C. Circuit, Sri Srinivasan. But during that hearing, Ranking Member Chuck Grassley (R-Iowa) announced legislation to cut the number of judges serving on that bench to 8. If Grassley has his way, Obama will be fortunate to get one judge placed on the D.C. Circuit.

Simply put Senate Republicans support and want to protect the pro-business tilt of the D.C. Circuit. The D.C. Circuit ruled earlier in the year in Canning v. NLRB that the president’s use of the recess appointment to fill three vacancies on the five-member NLRB was somehow unconstitutional. The D.C. Circuit’s Canning opinion has been widely lambasted as legally wobbly and appealed by the Obama administration. As the opinion wends its way through the appeals process, Obama has re-nominated NLRB Chairman Mark Pearce, a Democrat, and two Republicans, Harry Johnson and Philip Miscimarra. Earlier in the year, Obama nominated Democrats Sharon Block and Richard Griffin to the NLRB.

AFL-CIO President Richard Trumka blasted the D.C. Circuit’s latest work as “radical.”

“The D.C. Circuit’s ruling suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages and many other areas,” Trumka said. “The Court’s twisted logic finds that ‘freedom of speech’ precludes the government from requiring employers to provide certain information to employees. This absurd: when workers know their rights, the laws work as intended.”

Today’s opinion may be absurd, but it’s unfortunately reality. Senate Republicans are successfully weakening the federal agency charged with protecting workers’ rights, and controlling the make-up of the D.C. Circuit, which is proving all too eager to help.