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09.02.2014 1

Time to rein in the NLRB

National Labor Relations BoardBy Nathan Mehrens

As we observe the holiday named for workers, one thing is certain; labor unions and their allies have had an active 2014 so far.

A closer look behind the scenes reveals that much of this activity is geared not at making life better for workers, but to maintaining and building union power. There are good reasons; in order to survive unions must increase their numbers. Currently, only 6.7% of private sector workers are members of unions. The percentage has fallen significantly over the last several decades, creating urgency on the part of labor union officials and their allies to drive up the rate using any means available.

Knowing this, unions and their allies in agencies such as the National Labor Relations Board (NLRB) have engaged in a pattern of activities that are designed to make unionization campaigns more successful.

They have not been entirely successful, but are still trying.

After President Obama made several nominations to the NLRB which were found unacceptable by the U.S. Senate, he side-stepped the Senate and unilaterally installed them into office during a purported Senate “recess.”

In June, the U.S. Supreme Court held that these appointments were unconstitutional. This decision put an end to what was an obvious abuse of power and rendered hundreds of NLRB decisions unenforceable.  The NLRB is now, and will be for some time, cleaning up the mess it created by issuing decisions with Members that were not legitimately appointed.

While the Court’s decision is good news for those concerned with the rule of law, the NLRB now has a full slate of confirmed Members and in addition to cleaning up its mess it is working all the harder to make life easier for unions.

As if cleaning up their mess was not enough for them to do, the NLRB is also headed towards deciding that franchisees and franchisors are joint employers for the purpose of the National Labor Relations Act. The NLRB has also of late decided that it needs to micro-manage things like employers’ policies on social media usage by employees and language in employers’ handbooks in general. These actions will give unions expanded leverage in bringing unfair labor practice charges and make unionization campaigns more successful because it makes demonizing employers easier.

To rectify many of these problems, Rep. Austin Scott (R-GA-8) has introduced the Protecting American Jobs Act. The bill would take away the jurisdiction of the NLRB’s short-term appointees to adjudicate unfair labor practice cases and place jurisdiction back in the U.S. district courts -where it belongs. The concept is simple: real courts with real judges should handle these cases, not Members of a board that isn’t fully part of the Executive Branch nor is it part of the Judicial Branch. The Constitution created a government with three branches, not four or more, and Rep. Scott’s bill will help return the government to its original design.

Changes to the laws affecting workers, unions, and employers should be made by Congress, not the short-term NLRB Members. If there is a need for a change to the law, then let’s have that public debate in Congress where such debates belong.

It’s time for Congress to step up and take back power from the rogue agency that the NLRB has become. Passing the Scott bill would be a good start.

Nathan Mehrens is president of Americans for Limited Government and previously served in the U.S. Department of Labor.

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