It has been 173 days since President Obama left office. Yet, he still has a stranglehold on a powerful federal agency, the National Labor Relations Board. Despite President Trump holding the executive office for months, Obama’s appointees to the Board, which governs private-sector labor relations, still have a 2-1 majority of the five-member board, and continue to churn out pro-union decisions.
It is past time to end the excessively pro-union majority at the NLRB. During the Obama administration, the Board overturned a whopping 4,559 years of collective precedent, nearly all of which advantages Big Labor over worker freedom. With two vacant positions at the NLRB, it is imperative that the Senate swiftly confirm new pro-worker members to the agency.
Although it has taken too long, the Senate is starting the process of doing just that today. The Senate Health, Education, Labor and Pensions (HELP) Committee is holding a nominations hearing on the two nominations to the NLRB, Marvin Kaplan and William Emanuel. However, there are a couple more steps that need to be taken in order to confirm the nominees. They must be voted out of the HELP Committee and then be approved by the full Senate. This is urgent business that should be carried out before the Senate takes its August recess.
To that point, the Competitive Enterprise Institute is leading a coalition urging the Senate to quickly confirm Kaplan and Emanuel to the NLRB. Doing so will enable the Board to get to work on reversing job-killing and pro-union decisions.
As previously mentioned, the Obama administration overturned an obscene amount of sensible precedent, so there is a lot of work to do.
Of the utmost importance, the NLRB needs to address the previous Board’s joint employer standard. As I covered in a post yesterday, the nebulous definition of joint employer is an obstacle to job creation and entrepreneurship. Holding more employers liable for labor violations of other companies that they have little to no control over presents a major hurdle to business expansion and creates nearly unlimited liability for employers.
Though the NLRB has rulemaking authority, it rarely uses it. However, under the Obama administration, the agency issued what is known as the ambush election rule. This regulation dramatically shortens the time workers have to determine whether union representation is right for them. Union elections, from start to finish, can be conducted in as little as 9 days due to the rule. Previously, the median election time took a little more than 30 days. Workers need more than a little over a week to assess the pros and cons of unionization. Once unionized, workers forfeit their ability to negotiate directly with their employer and a third party union is in charge of negotiating all of their workplace conditions. This is a decision that should not be made in haste.
But there is a more insidious provision of the rule than not giving workers a proper amount of time to educate themselves on union representation. Ambush elections require employers to hand over workers’ private information — phone numbers, email addresses, and work schedule — to a union. And this is prior to the union winning an election. Workers deserve the right to decide who is worthy of receiving their private data. No less, even the pro-union, Obama NLRB recognized that giving workers’ email addresses and phone number to unions could be used to “harass, coerce, or rob employees.”
It is too important to let the nominees to the Board linger. The Senate must move quickly to install President Trump’s nominations to the NLRB. Filling the vacant seats is imperative to returning the agency to a body of impartial members that represents the public interest in labor disputes, not Big Labor.