An Overdue End to the Obama NLRB’s Reign?

William Emanuel testifies before the Committee on Health, Education, Labor and Pensions during his nominations hearing to be a Member of the National Labor Relations Board, on July 13, 2017.

(Since the printing of this newsletter article, both Trump NLRB Board Member nominees Kaplan and Emanuel have been confirmed by the Senate.)

Confirmation of Two Trump Nominees Won’t Suffice to Stop Abuses

As this Newsletter edition goes to press in early August, the U.S. Senate appears poised to approve President Trump’s nominations of William Emanuel and Marvin Kaplan to the National Labor Relations Board (NLRB).

Currently there are two vacancies on the five-seat NLRB, and all three of the sitting members are appointees of unabashedly pro-forced unionism former President Barack Obama.

Two of the three, ex-union lawyer Mark Pearce and Lauren McFerran, a former staffer for five-term Big Labor U.S. Sen. Tom Harkin (D-Iowa), are radical proponents of compulsory unionism with established track records of “reinterpreting” federal labor law to expand union bosses’ special privileges.

“President Trump’s first two NLRB nominees are refreshingly different from Mark Pearce and Lauren McFerran,” commented National Right to Work Committee President Mark Mix.

“William Emanuel and Marvin Kaplan are labor-relations attorneys with promising track records of opposition to bureaucratic schemes granting Big Labor even more power over individual employees than is authorized by federal statutes.

“Unfortunately, their confirmation will not in itself guarantee a genuine and immediate change of course for federal labor-law implementation.”

Undoing Damage Wrought by Obama NLRB Won’t Be Easy And Will Take Time

Despite loud and angry protests from the AFL-CIO and Big Labor politicians on the Senate Health, Education, Labor and Pensions (HELP) Committee, the panel approved the Emanuel and Kaplan nominations on July 19.

Right to Work legislative staff had contacted HELP Committee members prior to the vote to urge support for both nominees. And the Committee is prepared, if necessary, to mobilize grass-roots support nationwide for confirmation when the two prospective NLRB members come up for consideration.

“I’m optimistic that at least the bleeding will stop with regard to the worker’s individual rights once Mr. Emanuel and Mr. Kaplan are seated on the NLRB,” said Mr. Mix.

Marvin Kaplan testifies before the Committee on Health, Education, Labor and Pensions during his nominations hearing to be a Member of the National Labor Relations Board, on July 13, 2017.

“Together with Chairman Phil Miscimarra, the one current NLRB member who hasn’t manifested a strong propensity to distort federal labor law to make it even easier for union bosses to seize monopoly-bargaining privileges over employees, the two new appointees can, I hope, rein in Mr. Pearce and Ms. McFerran.

“But undoing the damage wrought by the Obama NLRB won’t be easy and will take time.”

According to one published estimate, by the end of 2016, the chronic rewriting of federal labor law by the Obama Board had overturned 91 precedents and more than 4500 years of cumulative case law.

For example, a December 2014 NLRB rulemaking action requires employers facing unionization campaigns to turn over to union organizers multiple forms of contact information for all employees, even employees who explicitly object to having their personal information fall into Big Labor’s hands.

Late 2014 NLRB Assault Undermined Employees’ Ability To Resist Unionization

Another, simultaneously issued edict shortened the time between notification of workers that a unionization vote will be held and the actual ballot to as little as 11 days.

One obvious effect of this regulatory assault is to deny employees opposed to unionization sufficient time to make their case to their fellow workers.

Mr. Mix commented:  “For the Trump NLRB to undo the damage inflicted by Obama bureaucrats’ ‘ambush election rules,’ new draft rules would likely first have to be formulated and published.

“Union officials and their radical allies would then be granted several months to raise objections. And the Trump NLRB would have to respond in detail to these objections before any new rules could be finalized.

“For this and other reasons, Right to Work proponents in Congress are perhaps better equipped to reverse the ‘ambush elections’ scheme and an array of other Obama NLRB power grabs.”

However, if it has the will, a full-strength Trump NLRB can quickly undo a few of the Obama era’s most appalling bureaucratic handouts to Big Labor.

The prime example is the Board’s lawless expansion of union bosses’ forced-dues privileges in its 2012 ruling in United Nurses and Allied Professionals v. Jeanette Geary.

New Board Could Quickly Reverse Expansion of Forced-Dues Privileges

Mr. Mix explained the potential impact of this decision: “Federal statutes grant union officials extraordinary powers over individual workers. Except in Right to Work states, federal law authorizes Big Labor to get employees in a broad array of industries fired for refusal to fork over forced union dues or fees.

“But in theory, Big Labor shouldn’t be able to get away with using workers’ forced-dues money to advance a policy agenda those workers oppose.

“Under Beck and other court precedents won by the National Right to Work Legal Defense Foundation, forced dues-paying workers who never join or resign from the union have the right to pay a forced, but reduced, union ‘agency’ fee rather than full forced dues.

“And objecting workers’ forced fees are not supposed to be spent on lobbying unless that lobbying is somehow an integral part of negotiations between union officials and managers.

“But Geary gives union bosses a green light to force nonmembers who object to the use of their ‘agency’ fees for anything other than bargaining to pay for Big Labor lobbying.”

Effectively ignoring Beck, the Obama NLRB contended that it’s okay for union chiefs to force objecting nonmembers to subsidize union lobbying activity if it “may ultimately inure to the benefit” of the employees under the union’s monopoly-bargaining control.

“Of course,” noted Mr. Mix, “Big Labor always claims its lobbying and electioneering schemes ‘ultimately inure to the benefit’ of unionized workers. If Geary stands, Beck protections against the extraction of forced dues for union lobbying will be gutted.”

Even the Minimal Free-Speech Rights Established By Beck Remain Precarious

In 2014, the U.S. Supreme Court unanimously invalidated Barack Obama’s putative “recess” appointments of two of the three NLRB members who had signed on to the Geary decision, on the grounds that the Senate was not actually in recess when the appointments were made.

That means Geary was issued by an illegally constituted Board. But for more than three years after the High Court issued its Noel Canning decision, the NLRB stonewalled instead of fulfilling its legal duty to reconsider Geary.

“As soon as Mr. Emanuel and Mr. Kaplan are confirmed and seated, the Trump NLRB should end the unconscionable stonewalling and reconsider and reverse Geary,” said Mr. Mix.

“It is a travesty that, nearly three decades after Beck established minimal free-speech protections for forced fee-paying private-sector workers, those protections remain so precarious.

“But it is a relief that, at least for the next few years, it seems the NLRB won’t be actively working to sabotage Beck.”

(Source: September 2017 National Right to Work Newsletter)