`Depoliticizing¿ the National Labor Relations Board: Administrative Steps
This Note argues that the National Labor Relations Board should adopt a . 5 The analysis builds off of the allocation of burdens in Capitol EMI Music, Inc., Thus, for example, a union's unfair labor practice charge against a. Last month, the National Labor Relations Board (“NLRB”) vacated election results . achieving pay equity, and otherwise improving the workplace for women.
The act permits a discharge for any reason other than union activity or agitation for collective bargaining with employees. The restroration of Watson to his former position in no sense guarantees his continuance in petitioner's employ.
The petitioner is at liberty, whenever occasion may arise, to exercise its undoubted right to sever his relationship for any cause that seems to it proper save only as a punishment for, or discouragement of, such activities as the act declares permissible. The business of the Associated Press is not immune from regulation because it is an agency of the press.
ASSOCIATED PRESS v. NATIONAL LABOR RELATIONS BOARD. | US Law | LII / Legal Information Institute
The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. The order of the Board in nowise circumscribes the full freedom and liberty of the petitioner to publish the news as it desires it published or to enforce policies of its own choosing with respect to the editing and rewriting of news for publication, and the petitioner is free at any time to discharge Watson or any editorial employee who fails to comply with the policies it may adopt.
The judgment of the Circuit Court of Appeals is affirmed.
Under New Management: Pushing Back Against Big Labor
One of the points made in the court below, and assigned as error here is that the statute involved, as applied, abridges the freedom of the press in violation of the First Amendment. The Associated Press is engaged in collecting, editing, and distributing news to its members, publishers of some newspapers throughout the United States.
These newspapers represent many diverse policies and many differences in point of view. It, obviously, is essential that the news furnished should not only be without suppression, but that it should be, as far as possible, free from color, bias, or distortion. Such is the long-established policy of the Associated Press. If the Congressional act here involved, upon its face or in its present application, abridges the freedom of petitioner to carry its policy into effect, the act to that extent falls under the condemnation of the First Amendment.
We shall confine ourselves to that question, the gravity of which is evident; but we do not mean thereby to record our assent to all that has been said with regard to other questions in the case. The first ten amendments to the Constitution safeguard the fundamental rights therein mentioned from every form of unpermitted federal legislation. The due process clause of the Fifth Amendment protects the person against deprivation of life, liberty, or property except by due process of law.(Employee and Labour Relations)
Society of Sisters, U. But the framers of the Bill of Rights, regarding certain liberties as so vital that legislative denial of them should be specifically foreclosed, provided by the First Amendment: Deprivation of a liberty not embraced by the First Amendment, as for example the liberty of contract, is qualified by the phrase 'without due process of law'; but those liberties enumerated in the First Amendment are guaranteed without qualification, the object and effect of which is to put them in a category apart and make them incapable of abridgment by any process of law.
That this is inflexibly true of the clause in respect of religion and religious liberty cannot be doubted; and it is true of the other clauses save as they may be subject in some degree to rare and extreme exigencies such as, for example, a state of war. Legislation which contravenes the liberties of the First Amendment might not contravene liberties of another kind falling only within the terms of the Fifth Amendment.
Thus, we have held that the governmental power of taxation, one of the least limitable of the powers, may not be exerted so as to abridge the freedom of the press Grosjean v.
No one can read the long history which records the stern and often bloody struggles by which these cardinal rights were secured, without realizing how necessary it is to preserve them against any infringement, however slight. Justice Bradley said in Boyd v.
United States, U. Their motto should be obsta principiis. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.
The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States dissentU. A little water, trickling here and there through a dam, is a small matter in itself; but it may be a sinister menace to the security of the dam, which those living in the valley below will do well to heed. The grants of the Constitution always are to be read in the light of the restrictions. Thus, the exercise of the power to make laws on the subject of bankruptcies, the exercise of the war powers, of the power to tax, of the power to exclude aliens, or of the power to regulate commerce, is each subject to the qualified restrictions of the Fifth Amendment Louisville Joint Stock Land Bank v.
Congress has no power to regulate the relations of private employer and employee as an end in itself, but only if that be an appropriate and legitimate means to a constitutional end, which here is the regulation of interstate commerce. Assuming that the statute upon its face satisfies this test, does the present application of it satisfy the requirement that the freedom of the press shall not be abridged?
Freedom is not a mere intellectual abstraction; and it is not merely a word to adorn an oration upon occasions of patriotic rejoicing. It is an intensely practical reality, capable of concrete enjoyment in a multitude of ways day by day.
When applied to the press, the term freedom is not to be narrowly confined; and it obviously means more than publication and circulation.
If freedom of the press does not include the right to adopt and pursue a policy without governmental restriction, it is a misnomer to call it freedom. And we may as well deny at once the right of the press freely to adopt a policy and pursue it, as to concede that right and deny the liberty to exercise an uncensored judgment in respect of the employment and discharge of the agents through whom the policy is to be effectuated. The board found, in effect, that the actual reason for Watson's discharge was his activity as a member of a labor organization in the furtherance of its aims.
Accepting this as a true statement of the reason for the discharge, let us consider the question from the standpoint of that finding; although, as already indicated, we are of opinion that the constitutional immunity of the press does not permit any legislative restriction of the authority of a publisher, acting upon his own judgment, to discharge any one engaged in the editorial service. Such a restriction of itself would be an abridgment of the freedom of the press no less than a law restricting the constitutional liberty of one to speak would be an abridgment of the freedom of speech.
For many years there has been contention between labor and capital. Labor has become highly organized in a wide effort to secure and preserve its rights. The daily news with respect to labor disputes is now of vast proportions; and clearly a considerable part of petitioner's editorial service must be devoted to that subject.
Such news is not only of great public interest; but an unbiased version of it is of the utmost public concern. To give a group of employers on the one hand, or a labor organization on the other, power of control over such a service is obviously to endanger the fairness and accuracy of the service. Strong sympathy for or strong prejudice against a given cause or the efforts made to advance it has too often led to suppression or coloration of unwelcome facts.
It would seem to be an exercise of only reasonable prudence for an association engaged in part in supplying the public with fair and accurate factual information with respect to the contests between labor and capital, to see that those whose activities include that service are free from either extreme sympathy or extreme prejudice one way or the other. And it would be no answer to say that dealing with news of this character constitutes only a part of the duties of the editorial force. The interest of a juror, for example, in the result which excludes him from sitting in a case, may be small and the adverse effect upon his verdict by no means certain.
Nevertheless, the party affected cannot be called upon to assume the hazard. In the present case, by a parity of reasoning, the hope of benefit to a cherished cause which may bias the editorial employee is a contingency the risk of which the press in the exercise of its unchallengable freedom under the Constitution may take or decline to take, without being subject to any form of legislative coercion. What, then, are the facts here involved? Morris Watson was employed by petitioner first in as a reporter and rewrite editor in petitioner's Chicago office.
Inhe was transferred to the New York office, and there served as editorial employee until his discharge on October 18, One of his duties was to rewrite and supervise the news received at the New York office and determine what portion of it should be sent to points outside. As the court already has pointed out, he had authority to determine the news value of items received and was required to speedily and accurately rewrite the copy delivered to him. In November,Watson was instrumental in organizing the Associated Press Unit of the New York Newspaper Guild, a labor organization, constituting a part of the American Newspaper Guild; and he was, from the beginning, recognized as the outstanding union representative of the press associations.
He served successively as chairman of the Associated Press Unit and as treasurer and secretary of the New York Guild, and at the time of his discharge was vice president for wiring services of the American Guild. His guild activities were immediately objected to by petitioner; and thereafter, on numerous occasions, these activities were objected to by petitioner's executives and inducements were held out to him to abandon them. The findings of the board disclose that Watson continued in various ways to promote the interests of the guild; and there is no doubt that his sympathies were strongly enlisted in support of the guild's policies, whether they clashed with the policies of petitioner or not.
NLRB Colludes with Big Labor to Unionize Franchises
We do not question his right to assume and maintain that attitude. But, if petitioner concluded, as it well could have done, that its policy to preserve its news service free from color, bias, or distortion was likely to be subverted by Watson's retention, what power has Congress to interfere in the face of the First Amendment? And that question may not be determined by considering Watson only; for the power to compel his continuance in the service includes the power to compel the continuance of all guild members engaged in editorial work, with the result that the application of the statute here made, if carried to the logical extreme, would give opportunity for the guild to exercise a high degree of control over the character of the news service.
Due regard for the constitutional guaranty requires that the publisher or agency of the publisher of news shall be free from restraint in respect of employment in the editorial force.
And we are dealing here not with guild members employed in the mechanical or purely clerical work of the press, but with those engaged as Watson was in its editorial work and having the power thereby to affect the execution of its policies. An illustration may be helpful: The right to belong to a labor union is entitled to the shield of the law, but no more so than the right not to belong. Neither can be proscribed.
So much must be true, or we do not live in a free land. Let us suppose the passage of a statute of like character with that under review, having the same objective, but to be effected by forbidding the discharge of employees on the ground not that they are but that they are not members of a labor association.
Let us suppose further that a labor association is engaged in publishing an interstate-circulated journal devoted to furthering the interests of labor, and that members of its editorial staff, resigning their membership in the association, transfer their allegiance from the cause of the workingman to that of the employer.
Can it be doubted that an order requiring the reinstatement of an editorial writer who had been discharged under these circumstances would abridge the freedom of the press guaranteed by the First Amendment? And if that view of the amendment may be affirmed in the case of a publication issued for the purpose of advancing a particular cause, how can it be denied in the case of a press association organized to gather and edit the news fairly and without bias or distortion for the use of all causes?
To hold that the press association must await a concrete instance of misinterpretation of the news before it can act is to compel it to emperiment with a doubt when it regards certainty as essential. The concclusion that the First Amendment is here infringed does not challenge the right of employees to organize, to bargain collectively with their employers about wages and other matters respecting employment, or to refuse to work except upon conditions they are willing to accept.
Nor, the First Amendment aside, does it challenge the act in so far as it is an allowable regulation of interstate commerce. All affirmations in respect of these matters may be fully conceded without prejudice to our very definite view that the application of the act here has resulted in an unconstitutional abridgment of the freedom of the press.
A second factor is that most employers have no real stake in a vigorously enforced NLRA.
Dealing with a union is a little bit like being struck by lightning. An increasingly small number of private employers have union represented employees or realistically expect organizing drives in their future.
Few such employers are clamoring for unionization to be extended to their competitors. Those affected by unionization efforts are intensely interested in stymieing the agency and are able, with the acquiescence of other companies, to urge the various trade associations to take a hard line in Congress and the courts against the Board.
As for labor unions, they, too, have a much weaker stake in the NLRA. Union unfair labor practices, introduced by the amendments to the Act, are few in number because unions are less involved in traditional organizing campaigns involving labor picketing; preliminary injunctions against union violations these days are virtually unheard of. These professionals take their job seriously and are open to the evidence and reasoned argument.
But in the hard, politically tinged cases, they are not likely to depart from their prior conceptions. The decisions that issue in these hard cases are invariably seen, not entirely without cause, by the losing side as a product of political or ideological preferences. Another consequence is that Board innovation increasingly incites enormous, cascading controversy.
There is no discernible effect with respect to the routine, fact-specific cases that are grist for the NLRA mill. If there is an effect, it is in hard-fought cases in the courts of appeals—especially, the District of Columbia Circuit, where the alternative venue provision steers many Board orders for review.
It may be that the time has come for a legislative fix, for a fundamental alteration of the statutory scheme. Republican Senators Lamar Alexander and Mitch McConnell have authored a bill that would expand the agency to six members, require that any decision receive the support of four members to be valid, and provide for immediate judicial review of NLRB General Counsel complaints.
Professor Zev Eigen of Northwestern University School of Law and Sandro Garofalo of the Target Corporation have proposed transferring all adjudication of unfair labor practice complaints to the federal courts with the NLRB limited to holding elections and ruling on election objections. On February 23,fifty-two Republican senators approved a joint resolution, which soon thereafter passed the House in a largely partisan vote, disapproving of the NLRB regulation dealing with representation case procedure 8Representation—Case Procedures, 79 Fed.
Predictably, President Obama vetoed the measure; an override has not been attempted. If past experience is any guide, these legislative seeds are not likely to bear fruit any time soon. The Eigen-Garafalo article does warrant further consideration.
But these stirrings should help us bear in mind the political winds that could fundamentally change the NLRA.
NLRB Colludes with Big Labor to Unionize Franchises - Capital Research Center
In my view, the state of the agency should be a concern not just to its personnel but to those who support the essential guarantees of the Act—that employees should be free of employer retaliation to engage in concerted activity for their mutual aid or protection and to select collective bargaining agents. A vibrant Board is needed not so much for the high-visibility, controversial cases but for the everyday holding of prompt elections, investigation of retaliatory discharge charges, and repair to the district courts for a preliminary injunction to reinstate workers discharged in the course of an organizing drive.
But there is a problem, at least in perception, and the Board should be open to improvements in how it conducts its business. I have a few suggestions, none of which require a statutory amendment, that I hope the Board and its General Counsel will consider.
Rule of Four for All Policy Reversals By internal agreement, the members of Board would bind themselves, at least on an annual basis, to a Rule of Four: I have previously argued for rulemaking for policy reversals. The proposal offered here does not require rulemaking.
Statement of Special Justification for Policy Reversals Again, by internal agreement, the Board would require that any decision to overrule a prior decision spell out what new evidence has come to light or what changed circumstances have occurred justifying such an overruling.
A mere change in the composition of the Board or a judgment that the first decision was simply wrong would not be a sufficient justification. Fox Television Stations, Inc.
To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. And of course the agency must show that there are good reasons for the new policy.
This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary or capricious to ignore such matters.
In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.