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March 2, 2011 / J. Shaw

Obama,Nat Labor Rel.Board to Force Unionization

The NLRB and Mr. Craig Becker, who both bypassed congressional approval, are implementing a nationwide unionization push.

Last week the comment period closed on a proposed National Labor Relations Board (NLRB) rule that would seek to increase private-sector unionization. After losing the “card check” battle in the 111th Congress, the president is attempting to implement through regulatory fiat what he couldn’t get from Congress.


Three days before Christmas, the NLRB and its de facto head, Craig Becker, announced that all employers subject to federal labor law (the National Labor Relations Act) would be forced to post notices of unionization rights at their workplace. Becker bemoaned the lagging rate of private-sector unionization (6.9 percent of workers, compared to 36.2 percent for public-sector workers) and claimed that the NLRB already had authority to force employers to advertise for Big Labor. With private-sector unionization rates in some right-to-work states as low as 3.2 percent, the administration needed a regulatory response to failed efforts in Congress.

Those familiar with the extra-legislative pushes on “net neutrality” and greenhouse-gas emissions know that regulatory overreach is this administration’s modus operandi. It might be easy to ignore Congress and legislate from atop a regulatory board, but it’s generally not legal, and this NLRB action rests on dubious legal grounds.

Workers are accustomed to seeing notices concerning the Family Medical Leave Act or the Civil Rights Act posted in an office kitchen or near a water cooler. These notices have something in common: Congress enacted legislation requiring employers to post them. Congress took the affirmative step to enact the language, and it delegated power to the NLRB to carry out the rules. The proposed posting of unionization rights has no such approval from Congress. But lack of authority, whether congressional or constitutional, doesn’t seem to deter the president. (Indeed, Becker’s appointment to the NLRB is dubious. After the Senate blocked the nomination of the former counsel to the AFL-CIO and the SEIU, President Obama made a recess appointment.)

As G. Roger King, a labor lawyer and partner at Jones Day, recently testified, “[I]t is questionable whether the Board has the authority to engage in rulemaking to require notice posting, particularly where Congress has explicitly required notice posting in other statutes.” If it is permitted to act without the necessary legislative authorization, who knows what the NLRB, an unelected and unaccountable body, could push in the way of politically convenient notice and posting requirements for employers?



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