Dark Clouds Over The Sunshine Act

Fred Wszolek
July 18, 2011

As the National Labor Relations Board (NLRB) convenes a “public” hearing on it’s recently announced rule to shorten the election window in American workplaces from a median 38 days to as little as 10, revelations concerning how President Obama’s regulatory agency has conducted itself during this process undermines public trust in the administration.

More than two years ago, the nation was told by then Illinois Senator and now President Barack Obama, that there would be a new era of openness and transparency in government consistent with promises he made to change the way business was done in Washington, D.C.

Today, the actions of Obama’s presidential appointees and nominees such as labor radical Craig Becker raise serious questions about the integrity of the president’s promises and the trustworthiness of his word.

As mentioned, the recently announced proposed rule will dramatically change board law and procedures over the conduct of NLRB representation elections to achieve an outcome long favored by organized labor – quickie or ambush elections. Currently, these elections occur roughly within five to seven weeks and organized labor wins nearly 70 percent of them. By any and all indications, the election process that has been in place for decades under both Republican and Democratic Administrations has worked exceptionally well.

The board’s announcement takes place in the aftermath of union bosses failing to convince Congress to enact the Employee ‘Forced’ Choice Act (EFCA), job-killing legislation which would force unionization on workers by eliminating the secret ballot in favor of card check and mandating government-run arbitration. As a result, Big Labor has been desperate to get a return on its half a billion dollar investment in bringing the current administration to power. Quickie elections give Big Labor some of that return. Card check – like quickie elections – limits the ability of employers to express their views on unionization and their employees’ the right to hear those views. The predominant story employees will be able to hear before voting is the story told by union organizers and bosses.

Big Labor bosses have spoken candidly about working with unelected government bureaucrats in Obama’s labor relations agencies to do what EFCA would have done: make organizing easier without regard for worker’ rights and legitimate management interests. And over the course of the last year, that’s exactly what they have done and the manner in which they have done it is anything but open, transparent and collaborative. .

The NLRB and the National Mediation Board (NMB) – the so-called “independent” agencies – have conducted their deliberations to change decades-old law and procedures affecting American workplaces in secret and out of public view .

All of this is proof that the administration’s promise of openness and transparency is clearly not being adhered to. These agencies have intentionally avoided triggering the notice and open meeting requirements of the government in the Sunshine Act of 1976. This act is based on the Congressional recognition that the “public is entitled to the fullest practicable information regarding the decision-making processes of the Federal Government.” It requires that whenever three or more presidential appointees deliberate over a proposed rule that meeting be noticed and be open to the public.

This act was, of course, intended to cover bureaucrats at such regulatory agencies as the NLRB and NMB, yet these two boards have gone to extremes to avoid triggering its requirements, ignoring the commitments made by the president who appointed them..

What else explains why the NLRB’s three Democratic members apparently never deliberated with their Republican colleague over the changes they were going to propose making in board election law and procedures? Presumably, the NLRB’s Democratic members never even deliberated amongst themselves. They must have deliberated two at a time or through their staffs. This gave the board the cover it needed. If the board had met in an open public meeting, the Republican member could have challenged his colleagues to explain the reasons why the board was making such whole-sale changes in the election process. He could have challenged his colleagues to identify the few cases in which they claimed there was delay and to analyze the reasons for it. An open meeting would have exposed the board’s real motivations: silence employers and avoid workplace debate on the question of unionization that the act intended and protects.

And this is not a one-time occurrence, as it has taken place with the other Obama independent labor relations agency and, again, as payback to union bosses. In 2009, the NMB – an agency charged with “facilitating harmonious labor-management relations” within the railroads and airlines industries – upended nearly a century of precedent whereby a collective bargaining unit was only formed when a majority of workers in the proposed unit voted in its favor. Instead, Obama’s regulators changed the rule to state that a collective bargaining unit is formed in the railroad and airline industries when a majority of those voting selected a union.

The NMB playbook of secret and carefully-orchestrated meetings and contact so as to not trigger the Sunshine Act was the one followed by the NLRB prior to announcing its quickie election rule and has become part of the Obama playbook. In the case of the NMB, the third member of the board had no idea a critical rule change was even being considered and had little to no time to respond to it in dissent. So, once again, an agency stocked with the president’s appointees decided in favor of labor bosses and forced unionization on workers by changing a policy in place since Franklin Delano Roosevelt was president.

Interestingly enough, the actions of both the NLRB and NMB and how they went about these rule changes are consistent with the premise of the policies they support: forced unionization. These agencies are forcing radical changes in law and procedures in the workplace without public input and challenge as they are being developed from those who may disagree with them.

This week’s hearing at the NLRB is not the kind public input the Sunshine Act intended. The three Board members who proposed the rule will not be challenged at this hearing to explain their reasons. Instead, the pubic will be challenged to explain reasons why the proposed rule should not be implemented.

As to the proposed rule itself, the vast majority of employers do not have labor lawyers on staff or easily accessible and they are not familiar with arcane rules that regulators divine to justify their government jobs and salaries. Therefore, reducing the time they have to familiarize themselves with the workplace election process to ensure they don’t break rules yet communicate their viewpoint is tantamount to eliminating their ability to respond, which in turn also hurts workers and will result in lost jobs.

President Obama’s failure to meaningfully address the actions of his appointees and nominees at regulatory agencies is instructive to all those Americans weighing his commitment to the promises he made just a few years ago.

The facts seem to bear out that the president’s promise to change the culture in the nation’s capital wasn’t just a missed opportunity, but completely disingenuous.

And it appears the assurance his administration is focused and dedicated to job creation with over nine percent unemployment and 14 million citizens out of work is also something that does not merit the confidence on the American people as his regulatory agencies pursue policies that kill jobs and destroy workers’ rights.

Fred Wszolek is a spokesperson for the Workforce Fairness Institute.

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