Few federal agencies have worked as hard to disrupt the economic recovery as the National Labor Relations Board, a five-member body created in 1934 to oversee union representation elections and to investigate and propose remedies where unfair labor practices are found to exist.
The board is not operating at full strength. President Barack Obama has managed to keep it functioning through several recess appointments—which are controversial given that Congress was not in recess at the time they were made—but that has not slowed it down.
In one instance the board "discovered" that it had the rule-making authority to require businesses to post notices in the workplace informing employees of their "rights" to form a union despite the fact that it had never done anything of the kind in its nearly 75 year history. A federal judge, however, disagreed.
Last Friday U.S. District Judge David Norton found that the labor board had exceeded its authority, determining that since Congress didn't authorize it to issue the poster rule, it was unlawful for it to have done so.
"Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes," Norton wrote, "the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner."
That's not the only case which has brought the National Labor Relations Board under fire. Next week the U.S. Senate is scheduled to vote on a measure written by Wyoming Republican Sen. Mike Enzi—S.J.Res. 36—to overturn the agency's so-called "ambush elections" rule.
Currently the average period before a union election can be held is 38 days after a union files a petition seeking official recognition. This gives both the union and management the opportunity to explain the facts to workers and to make sure that everyone understands what is at stake. The new rule shortens that period to as little as 10 days while eliminating the procedural safeguards employers now have to make sure union elections are duly authorized and that eligible workers are properly defined before the election can take place.
By shortening the timetable for union elections the board has acted in a way that dramatically tips the balance in favor of the union while doing little to help the workers, unless one assumes that being "unionized" is automatically to a worker's benefit.
National Labor Relations Board Chairman Mark Pearce has said he wants to go even further if the "ambush elections" rule is allowed to stand. The agency is already working to find a way to put an end to the secret ballot in union organizing elections.
"We keep our eye on the prize," Pearce said in January while promising, as supporters of Enzi's effort have put it, to force employers to make confidential employee information—including phone numbers and E-mail addresses—available to union organizers. This, of course, would expose them to harassment, intimidation, and potentially worse.
If the Senate does not act to overturn the "ambush elections" rule, the rights of workers will suffer. They will have even less time to gather the facts needed to make an informed decision about what is in their best interests while it would add to the regulatory burden that is keeping businesses from being able to create new jobs.
Under Obama the National Labor Relations Board is acting as a shill for the unions, helping them expand their reach and power. Some have argued it's a payoff for the support they gave the president in 2008. Others suggest there would be an effort to achieve these objectives no matter who is in the White House. Either way, it puts the interests of organizations, in this case the unions, ahead of the people they are supposed to represent.