Over the next few months, President Bush must make wise nominations to the National Labor Relations Board (NLRB) if he wishes to reverse the decades-long domination of the federal labor board by bureaucrats who are intent on handing Big Labor bosses more power to corral workers into unions.
Each of the five members of the NLRB wields a great deal of influence, and the agency’s general counsel wields even more. With three vacancies on the five-member board—plus the expiration of the general counsel’s term—upon us, the moment for decision is now.
Until quite recently, Clinton Administration holdovers controlled the NLRB. Now that several seats are opening up, Bush has the chance to right the course of the NLRB by nominating men and women who are strongly committed to individual worker freedom.
In the late 1990s, the one-two punch of an aggressive Clinton general counsel and a Clinton-majority NLRB effectively turned labor law on its head. Important rulings in that period reinforced an alarming trend to deny employees access to the less abusive secret ballot representation election process, instead subjecting them to more coercive organizing schemes.
Replace General Counsel
Just one example is the current lack of enforcement of the Supreme Court’s Beck decision—a case won by National Right to Work Legal Defense Foundation attorneys. The Beck ruling established that non-union employees may not be forced to pay for activities unrelated to collective bargaining, such as politics.
The Clinton NLRB’s policy, which is still in effect today, places the burden of proof on the worker. Rather than making the union prove that its spending is lawful, individual workers have to show evidence to the contrary. This is virtually impossible for workers to do, especially when the current NLRB general counsel, Arthur Rosenfeld, refuses to issue subpoenas to find the required evidence.
Since leaving the staff of liberal Sen. Jim Jeffords (I.-Vt.) to become general counsel, Rosenfeld has been a disappointment. As his term has now expired, the White House is at an important crossroads, particularly since Rosenfeld is openly seeking renomination.
The general counsel acts as a gatekeeper, who brings cases to the board’s attention. Since he possesses “unreviewable discretion,” many of his refusals to act over most of the past four years have left tens of thousands of workers without effective legal recourse to defend their rights. Meanwhile, entrenched pro-union-boss ideologues in the general counsel’s office wield tremendous power and have been given virtually free rein.
Only in the past few months has there been a hint of positive action, apparently as a result of Rosenfeld’s desire to be re-appointed. The general counsel has reluctantly authorized the issuance of a handful of unfair labor practice complaints involving the array of abuses that flow from so-called “neutrality” and “card check” agreements—Big Labor’s current coercive union organizing strategy.
At the same time, however, the general counsel refused to issue complaints to prosecute an unlawful “secondary boycott” by the United Auto Workers (UAW) union and the big three auto companies. This coercive arrangement threatens to blackball automotive parts suppliers nationwide from further business unless they hand over their employees to “card check” drives and deny employees even the minimal protections of a secret ballot election.
The general counsel’s office also refused to issue a complaint regarding the practice of the Service Employees International Union of forcing objecting nonmembers to pay for union organizing costs as a condition of employment. It found instead that charging workers in New York City for organizing drives in upstate New York was lawful under a claimed “industry or locality” exception.
It can take two to three years for cases to be fully litigated and ultimately presented to the board for review. That’s why it’s vital to appoint a new NLRB general counsel who will immediately take steps to issue complaints so that key issues have a chance for board review before the end of Bush’s second term. We cannot afford another three and a half years of a derelict NLRB.