Recess Appointments To NLRB Tantamount To Declaration Of War Against Employers

• Fred Wszolek

• While President Obama is taking a break in Hawaii, the conversation in Washington, D.C. has not stopped regarding his National Labor Relations Board (NLRB). Business is furious with a purported new rule ushered in just days before Christmas with labor radical Craig Becker at the helm that allows Big Labor to ambush employers with rushed elections and forcibly unionize workers who will be denied an informed choice.
  Next, there is growing concern that Obama will once again bypass Congress and recess appoint Richard Griffin and Sharon Block to the board as he did Craig Becker after his nomination was the subject of bipartisan opposition for views considered outside the mainstream. Griffin would have the distinction of being the second nominee in history to be nominated for a full term on the NLRB who came directly from a labor union, with Becker being the first. Griffin is the general counsel for International Union of Operating Engineers (IUOE) and serves on the board of directors for the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) Lawyers Coordinating Committee. He would not be a neutral arbitrator of labor-management disputes, but would continue in the mold of Craig Becker.
  The AFL-CIO has been at the forefront of efforts to politicize the NLRB and use it as a vehicle to gain payback from government bureaucrats. Stewart Acuff, an official with the AFL-CIO wrote in 2010, “It [sic] we aren’t able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action...”
  Sharon Block’s nomination raises independent concerns. Most recently, Block has served as deputy assistant secretary for Congressional affairs at the U.S. Department of Labor. She reports to former Congresswoman and current Secretary Hilda Solis who is one of the fiercest partisans in Big Labor’s camp in the nation’s capital.
  Solis has supported the Employee ‘Forced’ Choice Act which would have done away with the secret ballot election and has gone out of her way to cater to the union bosses who have been given free rein in the Obama Administration.

• Under her direction, the Labor Department is considering a rule change on “persuader” activity that would change the public disclosure requirements for employers, law firms, consultants and trade associations that provide services regarding labor relations and union organizing. Current law requires reporting by employers, consultants and law firms, when they directly “persuade” or interact with employees. The law provides an exemption; however, when a law firm or consultant simply provides advice without directly interacting with employees. The proposed change virtually eliminates this “advice exemption,” so that businesses would have to provide detailed and confidential data, including possibly proprietary information about business operations and details about contracts for services with their attorneys and outside consultants.
  The effect of the rule will be to restrict business’ ability to secure legal and other advice during a union organizing campaign which will be detrimental to employers who want to fairly address the issue of unionization with their employees and to employees who would be not be provided necessary information on the pros and cons of unionization before they vote.
  Block’s nomination should be given close scrutiny by the Senate which a recess appointment would prevent. As it is, her work for Solis at the Department of Labor should give reasonable people pause, particularly after the most recent partisan rules issued by the so-called “independent” administrative agency.
  The most recent job-killing rule created by Obama’s labor board provides for“quickie” or “ambush” elections. The new rule, which is legally suspect and is being challenged in court, effectively limits employer free speech by cutting the time for NLRB elections at least in half. It accomplishes this result by stacking the deck against employers, pushing board review of pre-election issues including the appropriateness of a bargaining unit and voter qualification until after the election, all issues that can determine whether an election should have taken place.
  This rule change follows an earlier labor board decision that radically altered how collective bargaining units are defined in every industry in the nation. It authorizes unions to petition to represent “micro-units” of employees, essentially any two or more employees doing the same job in the same location. This will give organized labor easy access into a business and threatens to balkanize the workplace, spread discord, and dramatically increase an employer’s labor relations costs as they will have to negotiate and apply multiple collective bargaining contracts.
  And this brings us to the end of 2011 with widespread anticipation that this President, who has demonstrated little care for orderly process and the rule of law, could recess appoint new labor allies to the NLRB. This would enable that agency to continue its assault on workers and small businesses while rewarding the President’s largest campaign supporters, Big Labor bosses who spent nearly half a billion dollars to put him in the White House.
  As Politico reported recently in an article titled, “It’s World War III at the NLRB,” the American business community would view NLRB recess appointments as tantamount to a declaration of war. It would be the end to any Obama legislative agenda for 2012 and put to rest any argument that he wants to bring Americans together to overcome the severe economic challenges we are confronting.