Under the National Labor Relations Act (Act), 29 U.S.C.S. § 151 et seq., the task of the National Labor Relations Board (Board), subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, and to seek a proper accommodation between the two. What is "a proper accommodation" in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires "above all else" that expression must not be restricted by government because of its message, its ideas, its subject matter, or its content.
An owner of a private shopping mall informed the employees of one of his tenants that they would be arrested for trespass if they continued to picket inside the mall. The union filed an unfair labor practice against the owner under § 8(a)(1), of the National Labor Relations Act (Act). The National Labor Relations Board's (Board) issued an order preventing the owner from interfering with the union members' right to picket inside the owner's private shopping mall. The owner questioned the order before the United States Court of Appeals but the United States Court of Appeals affirmed the order of the Board. The owner appealed the case to the Supreme Court of the United States contending that free speech considerations were inapplicable in an analysis under the National Labor Relations Act.
Are free speech considerations applicable in an analysis under the National Labor Relations Act?
The judgment of the court of appeals was vacated and the case was remanded to be considered under the statutory criteria of the National Labor Relations Act, and not the criteria of the First Amendment. The court held that it was error for the Board to consider competing constitutional and property right considerations in its application of the Act. The court held that the case that the Board relied on was overruled by another case. Thus, the general counsel had no duty to prove that other locations for the protest that were less intrusive upon the owner's property rights were either unavailable or ineffective. The court held that the striking union members had no First Amendment right to enter the mall for the purpose of advertising their strike against one of the stores therein.