Biden NLRB Escalates War on Employees’ Freedom

New Board Policy: Overturn Election if Workers Reject Big Labor

According to Founding Father James Madison, the creator of the basic framework of the U.S. Constitution and a coauthor of the Bill of Rights, the secret ballot is “the only radical cure for the arts of Electioneering that poison the very fountain of liberty.”

Americans today overwhelmingly agree with Madison that the secret ballot is an indispensable safeguard against political corruption and intimidation of voters.

Unfortunately, Big Labor bosses and union-label President Joe Biden’s radical appointees to the National Labor Relations Board (NLRB) have a very different perspective.

They clearly regard the secret ballot as an impediment to their getting what they want.

Biden Minions Admit Expanding Monopolistic Unionism Is Their Priority

And the Biden Administration isn’t even trying to hide where it is coming from. A 2022 report by Mr. Biden’s so-called “Task Force on Worker Organizing and Empowerment” made plain in its first paragraph that the President regards increasing the share of employees who are subject to “exclusive” union bargaining, by hook or by crook, to be its top labor policy objective.

Ignoring highly relevant facts such as the sharp increase in U.S. presidential election turnout since 1996, even as the national unionization rate has plunged, the report actually declared that increasing unionization is “critical” for “strengthening our democracy”!

National Right to Work Committee President Mark Mix commented:

“Because they make jacking up the number of U.S. workers who are corralled into a union, rather than protecting each worker’s freedom of choice, their priority,

Joe Biden and his appointees prefer so-called ‘card checks’ over secret-ballot elections.

“Experience shows many employees sign pro-union cards or petitions while union organizers are watching, even though they do not actually favor unionization, then go on to cast votes against the union into a secure ballot box.”

Secret-Ballot Votes May Be Overridden by Bureaucrats, Or Prevented Altogether

“That’s why,” continued Mr. Mix, “the Biden NLRB is working to ensure it has the power to override the results of secret-ballot elections routinely if workers vote against unionization, or prevent such votes from even happening at all if they would be inconvenient for union organizers.”

One important step towards this radically pro-union monopoly future was recently taken by NLRB Chairman Lauren McFerran, whom Mr. Biden elevated to her current leadership position, and two handpicked Biden NLRB appointees in their August decision in Cemex Construction Materials Pacific. 

Under Cemex, the routine NLRB “remedy” for alleged “unfair labor practices” by an employer that potentially may have had an impact on workers’ secret-ballot votes is to ignore majority votes against unionization and install the union as employees’ monopoly-bargaining agent automatically, without a revote.

To illustrate what this means, Mr. Mix cited a September order by an NLRB administrative law judge in Massachusetts curtailing the freedom of employees of several cannabis companies operating in the Bay State:

“In this case, known as I.N.S.A. Inc., union bosses first demanded that the cannabis company recognize them as employees’ ‘exclusive’ bargaining agents with regard to pay, benefits, and work rules based on cards allegedly signed by 20 out of 28 employees at one of the company’s stores.

“When the employer refused to acquiesce to a ‘card check,’ as it clearly has the right to do under federal law, union bosses petitioned for an election. They lost, but claimed the outcome was invalid because the employer had overreacted to disciplinary violations by two pro-union employees.

“Under more than half a century of NLRB and court precedents, the proper remedies for the employer’s overreaction, if that’s what it was, would be to lift the penalties imposed on the pro-union employees and schedule a new election.”

Workers’ Ability to Kick Out an Unwanted Union Could Virtually Disappear

Mr. Mix continued:

“With this system in place, employers who had actually committed serious infractions overwhelmingly ended up getting unionized in the second election.

But employees could vote down the union again if the charges were trumped up, or if they simply didn’t want a union regardless of what the employer had done.

“But the administrative law judge in I.N.S.A. Inc., following Cemex, didn’t call for a rerun election.

“His ‘remedy’ was to install the union as the employees’ monopoly-bargaining agent, despite the fact that, in the only vote that ever occurred regarding this matter, the employees voted ‘No’!”

As anti-employee as the ruling in I.N.S.A. Inc. is, it represents only the tip of the iceberg of the Biden NLRB’s campaign to foist unions on employees whether they want them or not.

An already-announced NLRB rule change that is set to be implemented soon could have just as devastating an impact as Cemex by making it virtually impossible for workers who want to kick out a union to do so through a decertification vote.

The rule change isn’t yet formalized, but NLRB bureaucrats in state after state are already blocking such votes from happening, even though employees, many of them assisted by National Right to Work Legal Defense Foundation attorneys, have collected enough petitions from their colleagues to trigger a decertification ballot.

Committee Supports Legislation To Guarantee Employees’ Right To a Secret-Ballot Vote

Their excuse, as in Cemex, is alleged employer misconduct. But this is clearly just a pretext. In several current cases, instances of employer misconduct cited as a reason to deny employees a decertification vote are alleged to have occurred hundreds or even thousands of miles away from where these employees work!

“The fact is, Cemex and other Biden NLRB schemes to routinize the imposition or perpetuation of monopolistic unionism on employees while denying them an opportunity to vote trample the limited statutory protections from Big Labor abuses American employees are supposed to have,” said Mr. Mix.

“As Justice William O. Douglas observed in the Supreme Court’s 1974 Linden Lumber decision, ‘the policy of encouraging secret elections . . . is favored under the National Labor Relations Act.’

“But the Biden NLRB is clearly discouraging secret elections.

“Of course, the Committee and its members are fighting back. We are, for example, backing federal legislation that would ensure employees can’t be corralled into a union unless they get a chance to vote in a secret-ballot election first.

“The Committee and its members are also strongly supportive of all credible congressional efforts to stop the Biden NLRB from abusing its authority in order to expand union bosses’ coercive power over workers.”

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