Radical Ex-Union Lawyers Control NLRB

‘Choice to Remain Unrepresented’ Under Attack

(Click here to download the May 2014 National Right to Work Committee Newsletter) 

President Obama’s NLRB Schemes to Bolster Monopolistic Unionism

Seventy-five years ago, in unusually blunt testimony before a U.S. House panel, Joseph Padway, general counsel of the American Federation of Labor (AFL), a precursor to today’s AFL-CIO, complained how federal laws and the bureaucrats implementing them weren’t doing enough to promote union monopolies.

In particular, Mr. Padway bemoaned the fact that U.S. labor law “does not require employees in a plant to select a [union] bargaining agent, if they do not want to.”

Employees’ only choice, Mr. Padway clearly indicated, should be over which set of union officials get “exclusive” (monopoly) bargaining power to negotiate their wages, benefits, and work rules.

Radical Ex-Union Lawyers Now Hold Three of the Five Seats on the Obama NLRB

More than 50 years later, during the 1990’s, union lawyer Craig Becker favorably cited Mr. Padway’s 1939 statement in his writings for academic and “labor studies” journals. In Mr. Becker’s ideal world, employees would have no individual or collective “choice to remain unrepresented.”

And in March 2010, President Barack Obama did the bidding of the union hierarchy by “recess” appointing Mr. Becker to the powerful National Labor Relations Board (NLRB).

Today, thanks to strong grassroots opposition, largely mobilized by the National Right to Work Committee, to efforts by union-label Senate Majority Leader Harry Reid (D-Nev.) to secure him a full-term appointment, Mr. Becker is no longer on the NLRB. Instead, since 2012, he has been co-general counsel to the AFL-CIO.

And this spring the Obama NLRB is ready to take several steps towards implementing Mr. Becker’s extremist vision of what federal labor policy should be.

Last month the NLRB, now made up entirely of members selected by Mr. Obama, held a pro forma two-day hearing on its pending proposal to impose sweeping changes to decades-old procedures under which Big Labor may obtain monopoly control over workers.

Compelling objections to this “ambush election” scheme were raised at the hearing by a National Right to Work Legal Defense Foundation attorney and several other witnesses, as well as in public comments made over the past few months by thousands of Right to Work members and other citizens.

Of course, nothing any pro-Right to Work American says is likely to make any meaningful difference to the three radical ex-union lawyers who now constitute a majority of the five-member NLRB–Chairman Mark Pearce, Kent Hirozawa, and former AFL-CIO Associate General Counsel Nancy Schiffer.

The proposed changes to procedures for NLRB certification that the Pearce-Hirozawa-Schiffer team will almost inevitably rubber-stamp within months, if not weeks, would, for starters, sharply reduce the current median time frame of 38 days between the filing of a petition and the conduct of a union election.

Employees Will Be Denied the Opportunity to Hear Both Sides Of the Story Before Voting

One consequence of such a change, as former NLRB member and Right to Work supporter Peter Kirsanow has put it, will be to “utterly and completely deprive employers of their ability to communicate vital information to their employees regarding their rights and the effects of unionization.”

Of course, once employers are denied enough time to make their case, employees will ipso facto be denied the opportunity to hear both sides of the story before voting on unionization.

But employees’ “underlying” statutory right “to receive information opposing unionization,” as then-Justice John Paul Stevens characterized it in a 2008 majority opinion for the U.S. Supreme Court, is hardly the only employee right threatened by the Obama NLRB’s “ambush” election scheme.

As Foundation attorney Bill Messenger pointed out to NLRB members in his testimony April 11, during a union certification campaign it can take some time for employees to decide if they want to campaign against unionization, how to do it, and what to say to their coworkers.

Consequently, under the Obama NLRB’s proposed new rules, many elections will be over before employees can fully exercise their rights under Sec. 7 of the National Labor Relations Act (NLRA) to engage in concerted activities with like-minded coworkers and to speak against unionization.

Employers Will Be Forced to Hand Employee Phone Numbers to Union Dons

Another proposed rule that the Obama NLRB is expected to green-light soon mandates that employers hand over employee phone numbers, e-mail addresses, and work schedules to union organizers.

Employers will be required to hand over to union organizers the personal information of all employees who potentially may be unionized, including even employees who expressly ask their employer not to do it.

In itself, this rule is a serious infringement on employees’ right to personal privacy.

And, as Mr. Messenger noted in his testimony, it also opens the door for misuse of this personal information by union supporters and third parties. For example, he said, the information could be misused by a union supporter to harass a coworker whom he does not like with late night phone calls or e-mail spam, or to make unwanted advances on a female coworker he does not like.

Incremental 2011 Bid to Impose ‘Ambush’ Elections Was Rejected in Court

Craig Becker actually succeeded in launching the bureaucratic scheme to gut workers’ “choice to remain unrepresented” in late 2011, when he and Chairman Pearce rammed through a rule sharply curtailing the time frame for union certification drives.

Fortunately, a federal court later found that the NLRB had illicitly adopted this rule without a proper quorum, and, consequently, the rule was invalid.

“National Right to Work Committee members and other freedom-loving Americans deserve a lot of credit for having held up Obama NLRB nominees in the Senate throughout most of the President’s first term,” commented Committee President Mark Mix.

“Grassroots Right to Work activism is the reason there wasn’t a radical pro-forced unionism quorum on the NLRB to carry out a regulatory rewrite of federal labor law until quite recently.

“Unfortunately, for the near future it is going to be extraordinarily difficult to stop this regulatory rewrite from moving ahead at full speed.

“Of course, many Republicans in Congress, and GOP House leaders in particular, have been sharply critical of the Obama NLRB’s excesses.

“But up to now GOP leaders have not had the stomach to use by far the most effective tool at their disposal, the power of the purse string, to stop NLRB bureaucrats in their tracks.

“Because GOP leaders have not had the will so far to refuse to pass legislation funding the NLRB unless the agency’s attacks on Right to Work cease, those attacks are almost certain to continue at least through the end of this year.”