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Obama's Regulatory Agencies Usurp Congress' Authority

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

In the last session of Congress, members of both the Senate and House spoke loudly and clearly through their actions on various pieces of legislation, including the Employee ‘Forced’ Choice Act (EFCA). EFCA would have eliminated the secret ballot in union organizing elections and given to government arbitrators the authority to determine wages and other terms and conditions of employment. Even though this anti-worker, job-killing legislation was introduced, it was never called to a vote because it lacked the support of the American people.

Union bosses pushed and pulled in every direction to get this massive labor union bailout – which would have made organizing easier but at the expense of workplace democracy and jobs – but were unable to succeed even in a Congress controlled by Democrats with whom they were closely aligned.

Yet, Big Labor is undeterred. Despite a weakened economy that could slip into a double dip recession, 14 million Americans seeking work and credit rating agencies downgrading for the first time in modern history the nation’s rating, union bosses continue to seek “payback” for their political support of the Obama Administration, without regard for the consequences. President Obama’s regulatory agencies are more than willing accomplices.

Never before has a little-known agency in government named the National Labor Relations Board (NLRB) attracted so much attention and disdain for its actions, heavily skewed in favor of increased power for labor bosses to the detriment of employers and their employees. The White House disingenuously tries to distance itself from the NLRB by repeatedly referring to it as an “independent” agency over which it has no control. But it is President Obama who put unabashed union partisans in charge of the agency. Obama appointed Lafe Solomon, the architect of the Boeing complaint, as the agency’s acting general counsel to take the place of a long-term agency employee who was already serving in that position. And Obama recess-appointed Craig Becker, a labor radical in favor of micro-units and quickie elections, after he failed to receive sufficient support in the Senate due to his extreme views.

Also, let’s not forget that Becker was an attorney on Obama’s transition team, so it is safe to say the President was very familiar with his views and background. Becker came directly from Big Labor as he was an associate general counsel for the Service Employees International Union (SEIU) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). Big Labor pushed for Becker’s appointment and the President was very willing to accommodate them despite opposition from members of his own party.

The NLRB is not the only agency focused on giving Big Labor its expected “payback.” Another obscure agency named the National Mediation Board (NMB) changed a 75-year precedent in the airline and railroad industries. Under the NMB’s new rule a union can win an election without getting the support of a majority of employees. So, in a unit of 1,000 employees, the union will win recognition if 100 workers vote and 51 favor the union.

This brings us to the current Congress which is not interested in rewarding union bosses at the expense of American workers and their employers. As a result, Big Labor continues to look for its “payback” from Obama’s regulatory agencies and with the tacit endorsement of President Obama and his administration.

Currently, there are three principal threats to the rights of employees and employers which are being undertaken by the NLRB and the Department of Labor (DoL). They will do for Big Labor what EFCA would have accomplished: dramatically increase the power of unions and make organizing easier.

The first threat is a rule that the NLRB announced it was considering in a case called Specialty Healthcare. The new rule would allow “micro-units” in unionized American workplaces, meaning collective bargaining units as small as two people who are doing the same job in the same location. It would be a dramatic and significant departure from long-standing Board law under which a collective bargaining unit can be all the employees or something smaller such as a plant, department or craft. It is inconsistent with a workers’ right to be in a unit with sufficient collective bargaining strength to negotiate with their employer. However, in certain circumstances it could be used by organized labor to get an easy foothold into a business through a tiny group which, though small, is critical to the employer’s operation. With such a unit, the union can extort concessions from the business which it would not otherwise have made and which it may not be able to afford. Micro-units threaten a proliferation of units and a balkanization of the workplace as different unions with dissimilar goals seek to represent the employees. This will result in less harmony and more work-stoppages as employees are drawn into conflicts in which they have no interest. And employers will experience ever-increasing labor relations costs curtailing business growth because they will have to negotiate and apply multiple collective bargaining agreements.

Next on the NLRB’s docket is “quickie” or “ambush” elections. In a recently announced proposed rule – once again undoing decades of precedent – the Board proposed shortening the period of time for union elections from a median of 38 days to as little as 10. Its unstated goal is to achieve for Big Labor what card check would have accomplished. It will limit, if not eliminate, an employer’s ability, protected by the National Labor Relations Act, to express its views on unionization and its employees’ right to hear those views and make an informed choice. The only story the employees will have an opportunity to hear is the union story. The proposed rule also includes other outrageous measures that will cause the entire election process to be tilted against employers. For example, the employer will now have to identify all pre-election issues and participate in an adversarial hearing just seven days after the union files it petition. This will decrease the number of elections – 92% in 2010 – that proceed in a far less adversarial process by agreement of the parties and increase employer, as well as agency costs. And another provision violates the privacy rights of employees. The employer will be required to provide union organizers with a list of all employees in its proposed unit. Under current law, the list need only include the employee’s last known address. Under the proposed rule it will include the employee’s home and cellular telephone numbers, as well as personal e-mail addresses.

Micro-units and quickie or ambush elections will enormously increase the power of unions to the detriment of legitimate employee and employer rights and interests, and our struggling economy will suffer. They threaten an increase in work stoppages, workplace disharmony and employer labor relations costs.

Lastly, the DoL is undertaking an effort which threatens to limit the availability of legal advice employers receive during a union organizing campaign. Such advice is very important in this complicated area of the law to avoid making inadvertent and unintentional mistakes. Attorneys and the employers who retain them for such advice will be required under the rule to disclose privileged information, which includes financial statements, client lists and other documentation. It is widely anticipated that many attorneys and some law firms will stop offering such advice if the proposed “gag” rule is implemented. As a consequence, many employers will be restrained from addressing their employees and having the free and open debate on the question of unionization that the law intended. The Department of Labor is led by Hilda Solis, a well-known defender of union bosses and supporter of EFCA.

The above efforts by unelected government bureaucrats on behalf of union bosses will accomplish for Big Labor by regulatory fiat much of what it wanted to achieve through EFCA. In short, the Executive Branch of government, which is charged with enforcing laws, is now writing new ones not supported by the American people. It is time for Congress to step forward and send a clear message to President Obama by passing legislation undoing the job-killing actions of these agencies and, if necessary, cutting off the flow of taxpayer dollars for these anti-worker initiatives.

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