The Obama administration, congressional Democrats, and their
organized labor allies threaten to exacerbate the economy’s
weakness by expanding the size of government by leaps and bounds.
If there is a silver lining to this situation, it is in its
compelling lawmakers to confront the federal regulatory
behemoth.
Fortunately, they have a tool to do just that. The Congressional Review
Act of 1996 (CRA) allows Congress to review — and, when
needed, repeal — agency-promulgated rules. The Act has only
been used once, in early 2001, to
repeal a Clinton-era ergonomics rule. The Act then lay
dormant, until now. Some Republican Senators are confronting a Big
Labor power grab through a resolution (S.J.
Res. 30) under the CRA, sponsored by Sen. Johnny Isakson
(R-Ga.) and scheduled to be voted on today.
Unions and their Democratic allies recently did an end run
around Congress by amending
the Railway Labor Act (RLA), which regulates labor
relations for railways and airlines, to skew voting rules in
unions’ favor. The change was enacted last May through the National
Mediation Board, which oversees labor negotiations under the
RLA.
Under the previous interpretation of RLA voting rules, which
dated back to 1934, a union needed to get a majority of all members
in the bargaining unit — the workers the union sought to represent
— to vote for unionization.
Under the new interpretation, unions only need to get a majority
of votes cast, which can lead to a union being certified as the
monopoly bargaining agent for a group of employees with only a
minority of those employees having voted for the union.
For example, if a union is trying to organize a company that has
1,000 employees and on the day of the election only 500 show up to
vote, the union would then need only 251 votes to win. Thus, a
union could become recognized with only a minority of workers in
the bargaining unit voting for it. The likelihood of only a few
employees voting is substantially increased due to the fact that
the RLA applies to railway and airline workers who are spread out
all over the country.
And this is unlikely to be the last such union power grab.
Despite all
they have gotten from the Obama administration, many
union leaders are frustrated over Democratic lawmakers’ failure to
enact the unions’ top legislative priority: the so-called Employee
Free Choice Act (EFCA).
As a result, they are seeking to do a run around Congress by
trying to get something similar to EFCA’s unpopular card check
provision — which would amend the National Labor Relations Act
to effectively eliminate secret ballots in organizing
elections — imposed
through the regulatory process.
Now the unions and their Democratic allies have an opportunity
to take a step in that direction through the National Labor
Relations Board’s (NLRB) recent vote to revisit its 2007 Dana
Corp. decision, in which the Board held that employees at
companies that have been organized through card check have the
right to request a secret ballot election, and decertify the union
if they want, within 45 days.
Now, as the Wall
Street Journal notes, organized labor “is turning to its
secret weapon inside the Obama Administration — labor lawyer Craig
Becker.” Becker, a former associate counsel for the Service
Employees International Union, was unable to gain Senate
confirmation to the NLRB and was recess-appointed by President
Obama to the Board in March. He has argued that employers should
have no say in organizing elections.
Were the NLRB to reverse its Dana ruling, it would
eliminate a protection against employee intimidation in card check
organizing. It would also make it more difficult for workers to opt
for a secret ballot election were card check, or some other
organizing method biased toward unions, to be enacted. And, given
the opportunity, the Obama NLRB could try to enact card check-like
organizing procedures on its own.
The Obama administration’s overreach on behalf of organized
labor is already wide-ranging, and it is likely to continue. If it
were successful, it would result in job-killing regulations imposed
on businesses. In the current weak economic environment, that is
unaffordable.
Even if not all resolutions under the Congressional Review Act
succeed, they can force lawmakers and regulators to account for the
costs of the rules they impose on the rest of us. It would be even
better still for new regulations to meet this kind of scrutiny
on a routine basis.
As my colleague Wayne Crews has pointed out, we will not be able
to truly curb the growth of government until we end “regulation
without representation.” Sen. Isaakson’s resolution shows one
avenue to pursue toward this goal. He has done the country a favor
by dusting off the CRA. It’s good to have it back.
