With more and more employees voluntarily deciding against forming collective bargaining units, Big Labor is intent on using the NLRB to force workers into unions. In 2010, as union bosses were coming to terms with the fact that card check legislation would not become law, one member of organized labor disclosed the strategy to leverage government bureaucrats to seek payback writing, “It [sic] we aren’t able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action...”
And that’s exactly what they’ve done. The NLRB decided in favor of the formation of “micro-unions” in the Specialty Healthcare case. These collective bargaining units could be as small as two or three employees and threaten to balkanize American businesses with a multiplicity of individual entities that are differentiated solely by the specific task workers perform or where they perform them.
The Board is also considering a new rule, which could require employers to provide labor bosses with employees’ personal contact information, including their e-mail addresses. This would expose workers to harassment, coercion and bullying while on the job, but also outside their place of work, even their homes.
With the expiration of Board Member Brian Hayes’ term on December 16th, the NLRB is deprived of the one neutral voice it had. Hayes did not owe his appointment to Big Labor. He often dissented, particularly from major Board decisions, because they were inconsistent with the facts or law. Such a presence is critically important because it brings balance to the NLRB and reviewing courts often rely on dissenting opinions to identify facts that may have been ignored by the majority and provide a countervailing statement of the law.
On December 5th, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments regarding President Obama’s recess appointments in the Noel Canning v. NLRB case. The court’s decision could have a significant impact on the agency’s ability to function, but in the interim, the NLRB is even more one-sided and biased in favor of Big Labor.
History shows a three-member NLRB has rarely issued major decisions reserving such action for a Board made up of at least four members. In the interest of maintaining any credibility whatsoever, abiding by long-standing tradition and demonstrating a modicum of fairness, the NLRB should withhold making any decisions that modify existing law or make new law until a fourth member from the minority is seated.