The NFL players in a very real and direct way are being forced to support publicly the political views of their employers at the behest of the government. The rule forces players to abandon expression of their own strongly held beliefs about racism, police violence, solidarity among NFL players, and the meaning of patriotism. Moreover, by making them stand during the anthem, the rule is meant to force the players to adopt, as Ben put it, “a particular vision of patriotism.”
The Supreme Court has warned against the danger of government-imposed patriotic orthodoxy. In finding unconstitutional a law that required school children to salute the flag and recite the Pledge of Allegiance, Justice Jackson wrote for the majority in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
Yesterday, the National Labor Relations Board vacated its December decision in Hy-Brand Industrial Contractors. (Ben and Sharon had called for this action in OnLabor last week here and here.) The Board’s unusual action follows a finding by the Board’s Inspector General that Member Bill Emanuel should have recused himself from participation in the case. The Board noted in its press release that because Hy-Brand had been vacated, “the overruling of the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), set forth therein is of no force or effect.”
The Board’s action was a welcome first step in correcting the damage done by the Hy-Brand decision. Most importantly, for the time being, the Board will determine joint employer status using the standard set forth in Browning-Ferris – a standard that takes into account the reality of today’s fissured workplaces. Beyond that important restoration, however, the Board’s one sentence order vacating Hy-Brand leaves many questions about the future unanswered.