Imagine voting in a presidential election where one candidate
can campaign for a year and the other is only told he is running a
week before Election Day. As absurd as that sounds, that is
precisely the choice that President Obama’s National Labor
Relations Board (NLRB) is trying to impose on American workers.
The NLRB is the supposedly neutral federal agency charged
with judging private sector labor law cases and interpreting labor
statutes. However, under Obama, it has gone far beyond that
mission, to propose sweeping rule changes favorable to
unions.
Some members of Congress are focused on this problem and
are trying to do something about it. On Wednesday, the House of
Representatives is set to vote on the Workforce Democracy and
Fairness Act (H.R. 3094). The bill, introduced by House Education
and the Workforce Committee Chairman John Kline (R-Minn.), would
prevent these “ambush” elections by requiring all union
representation elections to occur no less than 35 days following a
union’s election petition to the NLRB.
The Act would also allow workers to choose how a union can
contact them. Currently, employers are required to give unions
information such as a worker’s home address, which can lead to
intimidation by organizers.
The vote on H.R. 3094 could not be timelier. Also this
week, the NLRB is scheduled to vote on its own proposal to allow
for ambush elections. The NLRB’s proposed rule change would shorten
the period between unionization elections. Currently voting for
unionization takes an average of a month. If NLRB has its way, that
could be cut down to little more than a week.
The shortened period will mean that an employer would have
only about 10 days to respond to an organizing drive, including
hiring a lawyer and making the case to employees about what
unionization will mean to the company. Workers would only get one
side of the story. During a unionization campaign, the union can
campaign secretly for months, while the employer may only learn
about the campaign when the union files for an election with the
NLRB.
The NLRB is trying to rush the regulation through before
the end of the year, when NLRB member Craig Becker’s recess
appointment ends thus killing the board’s ability to make
decisions.
Becker’s nomination to the Board was so controversial that
it could not overcome a Republican filibuster in the
Democrat-controlled Senate, and for good reason. A former Service
Employees International Union lawyer, he has written that employers
should have no say in the unionization process — which appears to
be the true motivation for of the proposed rule.
When Becker steps down, the Board’s membership will drop
to two, and the Supreme Court has ruled that the Board needs a
quorum of at least three members to make a decision on any cases or
make any rules.
NLRB Chairman Mark Pearce is pulling out all the stops to
ram the regulation through. The NLRB’s lone Republican member,
Brian Hayes, complains that, while the proposal has garnered nearly
66,000 comments, his fellow Board members have kept him in the dark
regarding responses to the comments and any changes to the proposed
rule that differ from the original draft, reports The Wall
Street Journal.
Last week, Hayes wrote to Rep. Kline, saying the two
Democrat-appointed members had engaged in a series of
irregularities in trying to ram through the ambush elections rule.
Specifically, says Hayes, his fellow Board members:
• Disregarded precedent regarding election
timelines.
• Conducted the rulemaking process in secret without
regard to differing opinions.
• Diverted staff resources to rush the decision through;
and
• Told Congress there was no timetable for voting on the
rule when there actually was.
As a result, the Democrat-appointed Chairman of the NLRB
said Hayes threatened to resign as a last resort to stop this power
grab, by denying the Board a quorum. (Former NLRB Chairman Peter
Schaumberg suggests that Hayes may be able to deny the Board a
quorum simply by abstaining on that vote.) That may seem like a
radical move, but far more radical are the efforts by the Board’s
majority to ram through the quickie elections rule.
The NLRB’s actions underscore the Obama administration’s
disdain for Congress and its willingness to circumvent the
democratic process. Even if the NLRB’s push for ambush election
were to fall flat, the people’s elected representatives should
reclaim their constitutional lawmaking authority. This won’t be the
last time the NLRB is likely to try to usurp it. And this won’t be
the last time a liberal president will try to appoint a union
partisan to the Board.
Obama came into office as the most pro-union president in
decades, having gotten significant support from organized labor in
his 2008 campaign — support he will need for his 2012 reelection
effort.
For organized labor, the expected big payoff was in labor
law changes to tilt organizing rules in unions’ favor, most notably
the so-called Employee Free Choice Act, which would have
effectively replaced secret ballots in union organizing
elections.
Unable to get such pro-union legislation through Congress,
the president turned to regulatory agencies. His administration’s
approach to labor policy can be summed up as, “If at first you
don’t succeed, change the rules.”
