The following is from an an editorial in The New York Times:
The subject of the latest outrageous ruling by the U.S. Court of Appeals for the District of Columbia Circuit is an 11-by-17-inch poster.
The National Labor Relations Board requires nearly 6 million private employers to display the poster, which informs employees of their right to join or form a union or to take action together to improve their working conditions.
Three conservatives on the court struck down the rule on the ground that the board lacks the authority to make it. The rule, the court said, violated an employer's First Amendment right not to be compelled to endorse a view he disagrees with, the way students in public school cannot be forced to say the Pledge of Allegiance.
A federal trial court had ruled that while it was not necessarily an unfair labor practice not to display the poster, the NLRB had clear authority to require employers to put up the notice of employee rights.
The trial court accurately observed that there was no speech issue involved, because the notice did not infringe upon an employer's ability to speak out on labor-management issues, including the right to unionize. It was simply a federal notice with an NLRB logo telling employees about their federal rights.
The appeals court ruling is a reminder of why the court is sometimes known as the graveyard of federal regulation — and why it is good news that Sri Srinivasan, President Barack Obama's nominee for the court, has a good chance to be confirmed by the Senate.
The court has four vacancies, out of 11 seats. Republican obstructionism has blocked new appointments.
A decision on a subject as politically charged as this one shows why it is important to have balance on the court.