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Senate Republicans confront a Big Labor power grab.

By 9.23.10

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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.

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About the Author

Ivan Osorio is editorial director and a labor policy analyst at the Competitive Enterprise Institute.