NLRB T⁠i⁠l⁠t⁠s ⁠t⁠he Play⁠i⁠ng F⁠i⁠eld

By: The James Madison Institute / October 4, 2011

The James Madison Institute


October 4, 2011

By Dr. J. Robert McClure, President & CEO of The James Madison Institute
Originally Posted on WCTV6-CBS Editorial Blog: “Obama’s NLRB Tilts the Playing Field”  on September 30, 2011
Now that the new football season has kicked off, nobody knows for sure who will meet in the Super Bowl. In a sport where injuries can radically alter a team’s chances, even the experts in Las Vegas hedge their bets. Yet you don’t have to be a gridiron expert to know what will not happen. Never during the season will a referee tackle a player who’s racing toward the end zone. Neither will he order the scoreboard prior to the kickoff to read 21-0 in favor of the home team.Referees, like judges, are supposed to be impartial. So is – or was – the National Labor Relations Board (NLRB), the federal agency whose mission is to ensure that workers and their employers alike get a fair shake. Unfortunately, recent edicts by the NLRB’s General Counsel and the Obama-appointed majority have raised doubts about its fairness. Worse, these edicts fit a troubling pattern in which the Administration – unable to get all of its proposals through Congress – tries to govern by administrative fiat. Can’t pass costly cap-and-trade legislation limiting carbon emissions? Have the EPA make carbon dioxide “a pollutant.”Perhaps the NLRB’s most notorious ruling, however, was its recent decision preventing Boeing from opening a plant in South Carolina, a right-to-work state. Unfortunately that wasn’t the NLRB’s primary outrage; it also wants to authorize what employers rightly term “ambush elections” for union representation. In the past, if enough employees at a workplace signed cards saying they might want to unionize, the union and employer were given time to present their views prior to a secret-ballot election. Now the NLRB wants to shorten the time and muzzle the employers. No wonder businesses object.Consider, for example, the comment of the National Association of Manufacturers (NAM), which represents a major group of job-creating employers: “The proposed rules impair the right and the ability of employees to make an informed choice … and deny employers their … rights to communicate vital information to their employees regarding unionization.” NAM also notes that it’s not as if these elections take too long. “Fully 95 percent … were conducted within 56 days of the filing of a petition, and the median was 38 days. Clearly the NLRB’s proposed rules are a solution in search of a problem.”There is more. In the eyes of the NLRB, the “problem” is that unions don’t always win representation elections. That’s why Big Labor wanted Congress to pass the card check bill to eliminate secret balloting in workplace elections. Under card check, workers would “vote” by deciding whether or not to check a card while a union organizer stood by. Can one imagine the results of a public election with union organizers aware of every single vote as it is being cast? Not even the overwhelmingly Democratic Congress elected in 2008 could stomach that. As a result, the NLRB is now trying a back-door maneuver to achieve through rule-making what Congress didn’t do through law-making.How? In evident defiance of court precedents, the NLRB wants to redefine employee groups to allow “micro-unions.” If a majority of the employees of, say, a small restaurant opposed unionizing, subgroups such as dishwashers or cooks could form micro-unions with which the employer would have to deal. Moreover, under the union-shop laws in most states, even those subgroup employees who opposed unionizing would be forced to pay dues.Meanwhile, the NLRB – apparently suspecting that some workers aren’t sufficiently aware of their rights — is ordering employers to post notices informing workers of those rights. Failing to display these posters would be an “unfair labor practice” and could subject the employer to fines and other penalties. The NLRB has even ventured into the theological realm. As the Capital Research Center reports, the agency has asserted a right to determine whether faith-based schools and colleges are sufficiently religious to be exempt from federal rules on unionizing.These rulings by the NLRB’s pro-union forces remind us of an astute observation made by a pro-business Democrat, the late Sen. Paul Tsongas of Massachusetts, during an earlier recession. Said he: “You cannot be pro-jobs and anti-business at the same time. You cannot love employment and hate employers.” It’s a lesson the NLRB’s majority bloc has yet to learn.