NLRB Loses Attack on 1st Amendment

Excerpts from the Detroit News’ Aug. 4 editorial: “The U.S. Sixth Circuit Court of Appeals has just handed a stinging rebuke to the National Labor Relations Board for ignoring the First Amendment rights of the Midland Daily News . The federal appellate court…upheld a Detroit federal district court’s ruling quashing a subpoena to the mid- Michigan daily newspaper in the service of a speculative union complaint. The labor agency, which is supposed to be an impartial arbiter between unions and employers, had placed its subpoena power at the service of a union even when there was no definitive showing of a labor violation. In effect, it had turned itself into an agent of the union — and in so doing attempted to trample the First Amendment rights of the newspaper.

Two years ago, the Midland Daily News ran some anonymous ads seeking applications from electricians, with resumes to be sent to a newspaper box number. Two applicants submitted resumes, both indicating their membership in an AFL-CIO-affiliated electricians union. After three days had expired, the union filed an unfair labor practice complaint against the advertiser. When the newspaper declined to disclose the identity of the advertiser, the NLRB sought to subpoena the information. The newspaper, on the advice of its lawyers, former Detroit U.S. Attorney Philip Van Dam and Robert D. Black, resisted, contending that the agency’s action was…beyond its authority. The NLRB sought a court order to enforce the subpoena. A Detroit federal judge agreed with the newspaper. So did the U.S. Court of Appeals. In its ruling, a three-judge panel said the subpoena was ‘an unnecessary intrusion upon the First Amendment rights to commercial speech of both the … newspaper and its advertiser.’ The court added that the subpoena was a ‘blanket sweep’ and referred to the union’s charges as ‘speculative.’ Honoring the subpoena on the basis of the information available to the agency, if continued, could ‘chill the lawful commercial speech of periodicals and employers nationwide.’

Actions such as this, as well as recent rulings in which appellate courts in both the Sixth Circuit and District of Columbia Circuit have chastised the NLRB for failing to adequately uphold the rights of individual workers seeking an accounting of the use of their union dues for political purposes, paint a picture of a federal agency that has been captured by the very entities — unions — that it purports to regulate. Congress ought to ask serious questions about whether the NLRB needs a thorough overhaul — or even should exist.”