Right to Work advocates are hopeful that a federal judge’s willingness to stand up to union-label President Barack Obama’s National Labor Relations Board (NLRB) bureaucrats will help steel the spines of congressional leaders to do the same.
For well over a year now, the National Right to Work Committee and its members have been urging Congress to use its appropriations powers to block implementation of the NLRB’s “ambush election” scheme.
Key provisions in this sweeping overhaul of the procedures through which Big Labor may obtain “exclusive” bargaining control over workers force employers to hand over employee phone numbers, e-mails, and work schedules to union bosses within three days after an election is directed.
Early this month, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in a legal challenge to the NLRB power grab brought by the Associated Builders and Contractors (ABC) of Texas.
(The National Right to Work Legal Defense Foundation, the Committee’s sister organization, has submitted a brief in the case supporting the ABC challenge on behalf of independent-minded employee clients.)
At the hearing, NLRB lawyer Marissa Ann Wagner tried to defend her clients’ insistence that employers hand over to union organizers the personal information of all employees who may be unionized, including even employees who expressly ask their employer not to do it. Despite appearances to the contrary, the Obama NLRB is “sensitive” to employee privacy concerns, she claimed. But Judge Catharina Haynes was having none of it.
“See, I’m not seeing the sensitivity,” she told Ms. Wagner.
“I’m just seeing the [NLRB] go, ‘Oh, well, yeah, could be a problem, but we told unions not to misuse [the information], so that solves the problem.’ It’s kind of an airy, dismissive attitude.” (See the link below to read more about the hearing.)
Based on the comments made by a majority of the judges on the panel, there’s a good chance the Fifth Circuit will rule against the Obama NLRB’s ill-disguised effort to bolster monopolistic unionism. NLRB Chairman Mark Pearce, an ex-union lawyer, and his cohorts’ manifest aim is to make it almost impossible for aggressive, high-pressure unionization campaigns to fail.
Toward that end, they are willing to violate employees’ privacy and curb their ability to share information with one another about the possible ill effects of unionization.
But a Fifth Circuit ruling against NLRB bureaucrats, assuming it happens, will only be a first step toward quashing the “ambush election” scheme.
The Fifth Circuit has jurisdiction only over districts in Texas, Louisiana and Mississippi. And if the Fifth Circuit panel rules against Mr. Pearce and company they will almost certainly file an appeal with the Supreme Court. In the meantime, Big Labor-dominated appellate courts in other regions of the country may well rule in the NLRB’s favor.
It could easily take years before there is a judicial resolution of the “ambush election” scheme.
But pro-Right to Work U.S. representatives and senators can wield Congress’s appropriations power to stop the NLRB in its tracks much sooner than any court would likely be able to do so.
The National Right to Work Committee is calling on House Speaker Paul Ryan (R-Minn.) and Senate Majority Leader Mitch McConnell (R-Ky.) to allow floor votes this year on FY 2017 appropriations measures including a “rider” that bars the NLRB from continuing to implement the “ambush election” rules it put into effect in April 2015.
Congress has the constitutional power to rein in the NLRB, but President Obama will almost surely veto any appropriations measure that does that. And overriding such a veto, or persuading the President to back down, will be extraordinarily difficult.
Until a pro-Right to Work President is elected, protecting employees and business owners from NLRB extremism will remain an uphill battle. But it’s one freedom-loving Americans are convinced they must fight.