Obama Labor Board Slapped Yet Again

Fred Wszolek

5/21/2012 1:56:00 PM - Fred Wszolek

For just over a year now and since the failure of the Employee ‘Forced’ Choice Act (EFCA) to receive a vote in the 111th Congress, union bosses have been desperate to obtain the “payback” they believe is owed to them. Big Labor is beside itself that its membership numbers continue to dwindle despite giving half a billion dollars in campaign contributions to President Obama and Congressional Democrats.

In the absence of employees voluntarily choosing to join unions, labor bosses have decided to force them into collective bargaining units in an effort to line their own pockets. More than a year ago, an official with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) stated clearly that “administrative action” was the means labor would pursue to forcibly unionize workers and increase their number of dues-paying members.

Over the course of the last year, we have seen union bosses in concert with President Obama working to enact portions of EFCA through regulatory fiat. Unelected bureaucrats at the National Labor Relations Board (NLRB) have made decisions and issued job-killing rulings that could never pass in Congress, because they hurt workers and businesses, at a time the country struggles to recover from one of the most significant economic downturns in American history.

The NLRB is supposedly an “independent” federal agency which oversees relations between employers and organized labor in the private sector. During the Obama Administration, however, it has become the principal means by which union bosses see their anti-business agenda enacted. Worse yet, a number of the unelected bureaucrats on the Board have never gone before the U.S. Senate nor been confirmed as President Obama recess appointed them even though Congress was in session.

That has led to news this past week that a federal judge nullified a recent ruling by Obama’s labor board concerning “ambush elections.” The regulation rushes employees into making an uninformed decision concerning the formation of a collective bargaining unit, which is critically important to future of their livelihoods. It also severely disadvantages employers as they would struggle to gain access to the resources they need to make a fair case against professional labor organizers. Businesses could have as few as seven to 10 days from the petition filing to ensure their side of the story is told.

U.S. District Judge James Boasberg wrote in his opinion that, “According to Woody Allen, 80 percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.”

According to The Wall Street Journal, “As manipulative was the way President Obama’s NLRB appointees raced the new rules into the Federal Register and violated the normal standards of administrative procedure. In December 2011, former union lawyer Craig Becker's recess appointment to the labor board was about to expire, which with two seats vacant would have deprived the five-member NLRB of a quorum. When the final rule came up, the NLRB’s lone Republican commissioner, Brian Hayes, did not cast a vote. He was given only a matter of hours on the NLRB’s electronic ballot system before the Democratic majority went ahead and published it that day, without anyone requesting a response.”

In fact, the two member minority-majority ordered the Board’s Solicitor to issue the rule without Brain Hayes noting off on it, which is directly contrary to NLRB procedures governing the issuance of cases. They also – for the first time in the agency’s history – refused to permit a dissenting Board member the time to consider the rule they were adopting and issue a dissent with the majority, a critical role in the deliberative process.

In the end, the new rule has been shelved for the time being, but labor’s handpicked government regulators are not ceding any ground. Shortly after Judge Boasberg’s decision, NLRB Chairman Mark Pearce stated, “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation. We are determined to move forward.”

In the process of formulating the original rule, the NLRB received more than 65,000 comments from Americans with the vast majority opposing the change. Next, the NLRB recently issued its own 2011 annual report showing union elections normally only take 38 days, which is well below the agency’s goal of 42.

The reality is that there is absolutely no need for the ambush election rule outside of rewarding the President’s top political contributor. The business community must continue to ensure employees and employers vocally oppose this job-killing regulation. Even the government bureaucrats at the NLRB must be made to understand there will be political repercussions associated with their reckless behavior.