Ending Obama Era Abuses- Part 3: The NLRB

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The “progressive” Left is hell-bent on the belief that the success of the middle class lies with organized labor.  This flies in the face of serious setbacks by unions in organizing efforts throughout the country, unless you are a public sector worker.  Perhaps at one time unions served an important purpose in correcting workplace ills.  Today, we have laws regarding these things that pretty much makes unions obsolete.  Under Obama, he has attempted to transform the NLRB from a disinterested referee into a cheerleader for organized labor.  And why not considering the money unions pump into the coffers of the Democratic Party every two years?

Leaving aside the unanimous smack down by the Supreme Court of his unconstitutional recess appointments, there are other ways he is attempting to advance a political agenda through the NLRB.  Members of the board are appointed by the President and confirmed by the Senate and serve five years.  Each year, one member’s term expires.  This does two things: (1) it creates continual rotation and (2) it thwarts politicization by serving across presidential terms.  Naturally, a two-term president has greater appointment power in this regard.  In effect, they serve as a quasi-judicial body deciding cases of alleged unfair labor practices and promulgating regulations which, unless overturned by a federal court, become the law of the land.  Here is the first problem that needs to be resolved: Congress giving an appointed body of people de facto lawmaking power.

The General Counsel allegedly acts independently of the board itself and is appointed by the president to serve a 4-year term.  They serve as the investigator and the prosecutor of cases of alleged unfair labor practices, and oversee the field offices.  As such, they wield enormous power.  What they determine from their investigation goes.  If they decide there is no unfair labor practice, the case ends there- no referral to the whole board.  They are a mega-screener of complaints.  Not only does this smack of ignorance of any notion of due process, but depending on the appointee, they carry their prejudices into the entire process.  Hence, the second objective is to weaken the power of the General Counsel.

Third, the General Counsel and the board itself is granted too much leeway in determining what a workplace unfair labor practice is.  A perfect example is the decision that Boeing opening a plant in South Carolina- a right to work state where they would likely use non-union employees- was an unfair labor practice.  When the siting of a business is deemed an unfair labor practice, something is seriously askew at the NLRB.  That is a major, well-publicized example, but there are others on an almost daily basis which defy explanation other than the board is advancing a political agenda by bending their interpretation of rules in the favor of unions.

For example, at one business where there was an organizing effort, there was a posted memo regarding workplace violence and a zero tolerance policy towards it.  It was also in their employee handbook.  However, the NLRB declared this was an unfair labor practice and sanctioned the employer.  They have now gotten into the business of dictating to employers what can and cannot be in an employee handbook.  This was never the mission of the NLRB.

In April of this year, the NLRB established their so-called “ambush election” rules which upends years of NLRB policy.  Failing to get card-check legislation passed in Congress, unions turned to the NLRB.  After organization cards are signed and certified, a secret ballot election is held by the members of the proposed bargaining unit.  The reason is twofold: (1) it allows both sides to determine the bargaining unit and validity of the signature cards, and (2) it allows both sides- the union and the employer- to make their cases to the prospective employees.  The whole process averages 39 days.  Unions contend that the employees are a captive audience and that they are sometimes threatened and misled by employers.  What better way to cut down on that possibility than shortening the timeline to 10 days which is exactly what the NLRB did.

Secondly, the rules also stipulate that the employer hand over addresses, contact numbers and e-mail addresses of employees even if the employee requests otherwise.  Voter eligibility for the collective bargaining unit is determined AFTER the election.  Employers must file a Statement of Position within seven days and cannot appeal anything UNLESS it was in that original statement.  With the ten-day window, small businesses may be unable to hire legal counsel to help them.

So why the changes to the established rules?  Most union elections are held within 45 days of verification of the signature cards- ample time for both sides to present their case to employees.  According to their own website, the NLRB is/was proud of their record in exceeding their established goals in this area.  The new goal is obvious: to stifle debate and tilt the scales in favor or unions.

A second abuse is the new joint-employer rule.  Any business that contracts with a larger employer is now considered a joint employer if the larger employer exerts significant control over employees of the subcontractor.  Unfortunately, this seriously threatens the franchise model of business.  A perfect example was the recent NLRB determination that McDonald’s was a joint employer.  McDonald’s immediately filed a lawsuit against the determination.  However, this entire effort is driven not by some regulatory or legislative epiphany on the part of the NLRB; it is driven by SEIU and a complicit board.  If every franchise under a corporate brand name is considered one operation, then it is easier to organize regardless of the fact that Mr. Smith in Wyoming hires, fires, pays, promotes, etc. employees one way and Mr. Jones in New York hires, fires, promotes and pays employees another way.  Most low-paid service industries like fast food, some hotels, movie theaters and the like operate under the franchise model where the local “owner” exerts control over the employee.

Most of the blame lies with Congress in burying their head in the sand and allowing the NLRB wide latitude to be judge, jury, prosecutor and executioner.  One possible solution is to subject any proposed NLRB rule to Congressional scrutiny, review and acceptance (or rejection) if it would involve over a certain number of potential employees nationwide.  While not micromanaging the smaller cases (which even employers have no problems with the NLRB), it is time Congress took back some of the powers they have ceded to regulatory agencies in general.

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