Late last month, federal judges in courts located more than 1100 miles from one another sharply chastised Obama-appointed U.S. Labor Secretary Tom Perez for attempting, by bureaucratic fiat, to prevent employees from hearing all the key relevant facts before they are subjected to union monopoly control. And one of those judges enjoined Perez and his Labor Department from proceeding to implement his rewrite of federal labor law.
There’s no doubt about the pro-collectivization-of-employees bias of the National Labor Relations Act (NLRA), which authorizes union monopoly bargaining and the exaction of forced union dues and fees from workers as a job condition.
But the NLRA does at least specify that union organizers can acquire so-called “exclusive” representation power to negotiate the pay, benefits, and other working conditions of all the employees in a a group under certain conditions.
Only if the majority of those casting votes in an election support unionization, or if the majority of all employees in the federally-designated “bargaining unit” sign union “authorization” cards, may a single union acquire monopoly negotiation privileges.
The NLRA also tacitly recognizes that, before employees collectively decide whether or not they will be unionized, they have, as then-Justice John Paul Stevens put it in a 2008 majority opinion for the U.S. Supreme Court, an “underlying right to receive information opposing unionization.”
Many employers whose employees are being urged to unionize believe their employees should have the chance to hear all the key relevant facts before they make a collective decision.
However, federal bureaucratic regulations and court decisions have for decades tightly limited what employers may say under such circumstances, despite the seemingly broad protection afforded by the NLRA.
Unless they can receive expert legal advice, therefore, even employers who care a great deal about their employees’ freedom may well opt to say nothing.
Unfortunately, for years Labor Secretary Perez has been attacking employers’ ability to receive such advice. In April, Perez’s agency finalized its “persuader rule,” which is clearly designed to gut employees’ right to hear both sides of the story regarding union representation.
Since the 1959 Labor Management Reporting and Disclosure Act (LMRDA) was adopted, every presidential administration has interpreted it to require employers to file extensive paperwork with the federal government regarding their labor consultants only if those consultants communicate directly with employees.
Even the aggressively pro-forced unionism Carter and Clinton Administrations never interpreted it to impose burdensome paperwork requirements on employers who only seek expert advice as they or their managers communicate with employees, orally and/or in writing, about what unionization could mean.
However, under the Obama Labor Department’s new “persuader” rule, the LMRDA’s “advice” exemption is effectively nullified. If an employer hires any individual or firm for virtually any kind of assistance during a unionization campaign, reams of paperwork are required.
The cost of hiring and retaining qualified staff to fill out complicated disclosure forms that most small businesses normally don’t have to file will suffice to deter many from seeking any advice. And without expert advice, most will likely deem it prudent to go mute when union organizers call.
But federal judges in Minnesota and Texas have just dealt harsh rebukes to Perez and his Labor Department bureaucrats for their “persuader” rule.
In a June 22 opinion regarding one court challenge to the “persuader” rule, U.S. District Judge Patrick Schiltz of Minnesota found that the plaintiffs “have a strong likelihood of success on their claim that the new rule conflicts with the plain language” of the LMRDA.
Despite reaching this conclusion, Schiltz opted not to enjoin the “persuader” rule at this time. But in a separate opinion issued five days later in response to a challenge filed by the National Federation of Independent Businesses, Senior U.S. District Judge Sam R. Cummings in Lubbock, Texas, issued a nationwide injunction. (See the link below for more information.)
This is warranted, concluded Judge Cummings, because the “scope of irreparable injury” that would almost certainly result from enforcement of the rule is “national” and because the rule is “facially invalid.”
“Single-party elections,” in which the rules are rigged to ensure only one side’s message gets heard, are regarded as normal under despotic governments in places like China and Cuba, but they have never been acceptable in America.
In case the federal courts ultimately fail to do their duty and block Tom Perez’s illegal and unconstitutional scheme to help Big Labor drag more workers into unions from ever taking effect, the National Right to Work Committee stands ready to turn up the pressure on Congress to block enforcement of the “persuader” rule.