OPINION:
A few unelected officials in downtown Washington are rapidly accomplishing what 535 men and women in Congress refused to do.
The National Labor Relations Board (NLRB) has launched an aggressive agenda and is well on its way to achieving the goals of the Employee Free Choice Act (EFCA), a wide-ranging bill that would have reshaped the labor system in the United States.
Although the EFCA was a priority of organized labor, it never won the approval of Congress - even when one party controlled the House, Senate and White House. But who needs Congress when an ideological agency is at the ready?
The NLRB has long been a lightning rod. It’s true the agency is independent. The board members don’t have to answer to the president. But the president puts them there, and they clearly can bring an agenda with them. With gridlock in Congress, the board can fill the breach left by the legislature and make policy that could never survive the democratic process.
Manufacturers got a sense of the current board when President Obama set off a nomination fight by naming Service Employees International Union (SEIU) lawyer Craig Becker to the board. Mr. Becker’s history of partiality derailed his confirmation chances. Prior to his nomination, he had advocated restrictions on employers’ rights, such as limits on their speech and ability to communicate with employees during representation campaigns, leading Sen. Orrin Hatch, Utah Republican, to describe him as “the most radical nominee to the NLRB in my experience in the Senate.” Mr. Becker couldn’t clear the Senate, but the president put him on the board through a recess appointment.
Including Mr. Becker, the NLRB is down to just three members - two Democrats, both appointed by President Obama, and one Republican. At full strength, the board comprises five members, three of the president’s party and two of the other party.
Mr. Becker’s recess appointment runs out at the end of the year, so the board could be reduced to just two members. That may explain all the recent action at the NLRB - the Supreme Court ruled in 2010 that the board cannot render decisions if there are just two members.
So what has the board been doing? The short answer is that it’s putting jobs at risk by introducing uncertainty for job creators and potentially imposing new costs on employers. The more employers have to spend figuring out the new rules and complying with them, the less they can use to invest in their firms and hire new workers.
The NLRB is pushing the limits of its regulatory authority to upend our time-tested labor system. It recently finalized a 194-page rule to require employers to put up posters informing employees they have the right to organize. The National Association of Manufacturers thinks the agency does not have the statutory authority to do this, and we have filed a lawsuit against the board. The proposed “ambush elections” rule would speed up the time from when a union files for an election and when the election is held. The measure contains a timeline - as few as 10 to 14 days - that would severely limit the period during which an employer could communicate with its employees prior to a union certification vote. It’s a matter of fairness - employees should have the ability to make an informed decision by hearing from both the union and the employer.
Majority rules on the board, and the board has issued several 3-1 decisions (the board’s fourth member recently retired) that will have a significant negative impact on employees and employers alike.
Its August decision in the Specialty Healthcare case reverses years of precedent and imposes new burdens on employers. The decision opens the door for the creation of multiple unions, with as few as two members, in a single workplace. Imagine a shop floor with employees represented by not one but multiple unions, and the resulting headaches and costs for employers, which would have to spend time and money negotiating with multiple parties.
In another ruling, the board said employees can’t challenge a union certification done through the card-check process even if a majority of employees don’t want to be represented.
All of these decisions and proposed rules will have an impact on manufacturers, particularly small businesses, which don’t have the resources needed to navigate the complex new processes. They will have to get up to speed, potentially at the expense of new jobs and investment. In fact, when the National Association of Manufacturers asked its members about the NLRB’s agenda, 69 percent said it will hurt job creation.
An easy way for President Obama to help businesses and create more certainty would be to stop the NLRB. This week, the National Association of Manufacturers, partnering with the National Federation of Independent Business, launched an ad campaign in several states calling on members of Congress to support the Protecting Jobs From Government Interference Act. This is a joint effort by small-business owners and manufacturers who are deeply concerned about the stark economic consequences of the NLRB’s actions.
Now is the time to stop these burdensome regulations and actions that threaten jobs and economic growth.
Jay Timmons is president of the National Association of Manufacturers.
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