The NLRB’s Threat To An Economic Recovery

Katie Gage
March 21, 2011

There is an agency in Washington, D.C. that is aggressively pursuing a plan to increase union power to the detriment of legitimate management and employee interests including the interests of the our country’s principal job creators, small business. Instead of fairly interpreting and enforcing the National Labor Relations Act (NLRA), the agency is reversing decades of its own precedent. Ignoring its intended role – to be an independent agency of the Executive Branch – the National Labor Relations Board (NLRB) is fulfilling our earlier predictions that it would be nothing more than an extension of Big Labor. We now know what the leaders of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and Service Employees International Union (SEIU), who pushed for the recess-appointment of filibustered labor radical Craig Becker, meant what they said when they stated they were looking forward to working with the new members of the NLRB. Can you imagine the reaction from labor leaders and the news media if business leaders said the same thing?

In the past, the NLRB has been able to work largely unnoticed, out of the limelight. But with the nation’s anemic economic recovery, high unemployment rate, changes on Capitol Hill and the board’s sweeping anti-business agenda, its ability to operate in the shadows has sharply diminished.

Most recently, in a case known as Specialty Healthcare, the NLRB caused widespread alarm in the American business community when it asked for a briefing on whether it should approve very small collective bargaining units – one for every kind of job in an employer’s plant or company. Such a drastic change in existing board law, while it would make initial union organizing easier, would splinter employers’ business operations and harm the long-term interests of employees. Instead of approving larger groups of employees with common interests, such as plant-wide units that are now considered “presumptively appropriate,” the NLRB suggests it may approve a multitude of very small collective bargaining units. For example, a grocery store could find itself divided into bargaining units with a unit for cashiers, one for baggers, one for deli attendants another for the bakery staff and so on.

It is well recognized that such a proliferation of units creates discord, pitting one employee group against another, increasing the likelihood of work stoppages and business slowdowns and making collective bargaining less likely to succeed. And the administrative and legal costs to the employer will increase dramatically. Money will be spent on the employer’s labor relations costs instead of on hiring new workers, expanding service offerings and purchasing new equipment, all of which would make workers and business owners more successful.

The percentage of workers in the private sector represented by Big Labor has fallen for the first time to below seven percent. This is because employees are not buying what union bosses are selling: an opportunity to put their employer out of business with inflexible work rules that hobble the employer’s ability to compete, and wages and benefits it cannot afford. This is precisely what took place with the auto companies, which the government bailed out with tens of billions in taxpayer dollars. Today, labor bosses want to give the employees of small businesses the same opportunities they gave the employees of the automobile industry, but government will not be there to bail their employers out. So Big Labor needs this relatively unknown agency within the Federal government to stack the deck in its favor and it appears more than willing to do so.

It is well known that all of this is the brainchild of NLRB recess appointee Craig Becker, a former AFL-CIO and SEIU lawyer. He cannot reasonably be expected to support, much less be able to engage in, a balanced interpretation of the NLRA. Now that he sits on the board with two other union-side labor lawyers, we must be vigilant in holding the NLRB to its mission of protecting worker rights through a balanced interpretation of the act, not a strained interpretation plainly inconsistent with the intent of Congress and focused on perceived interests Big Labor.

Members of the Senate and House have shown that they are becoming increasingly alarmed by some of the NLRB’s recent decisions. The Congress should begin to take whatever actions are necessary to restrain the board and contain the damage.

Featured Blog

AZ Daily Sun--Coconino Voices: PRO Act legislation would hurt local businesses

— 05.13.2021 —
By: Julie Pastrik Arizona businesses and workers have had an incredibly challenging year given the economic slowdown that followed in the wake of the coronavirus pandemic. However, local businesses and industries across the state are resilient and on the road to a strong recovery that will mean more jobs for Arizona workers and increased economic development to strengthen our communities. That is, as long as Congress does not move forward with potentially devastating legislation that would hurt local employers and employees alike while impeding our state’s economic recovery. Unfortunately, some members of Congress seem determined to do just that by pushing through the Protecting the Right to Organize (PRO) Act. As harmless as the name may sound, the PRO Act would have serious repercussions for local businesses, particularly smaller ones, while undermining long-standing rights for employees and threatening the growing gig economy that has helped provide much-needed income for so many during this time. Arizona is fortunate to have leaders like Senators Mark Kelly and Kyrsten Sinema, who have both refrained from joining the vast majority of their Democratic colleagues in cosponsoring the PRO Act. In a slap in the face to Arizona workers, the PRO Act removes one of the most fundamental rights a worker has when it comes to voting in elections to determine whether to unionize: the secret ballot. Instead, workers could be forced to sign union authorization cards in front of other employees, their employer, or union organizers. This bill would also destroy workers’ right to privacy by allowing unions access to personal information, including their home address and personal phone number. If that doesn’t open the door to union intimidation and harassment, I don’t know what does. As if that was not bad enough, the PRO Act would create major new challenges for Arizona businesses, making it harder for them to create jobs, expand in their communities, and even keep their doors open. It would redefine what it means to be a “joint employer” under national labor law, greatly complicating existing relationships between franchisors and franchisees as well as between business owners, contractors, subcontractors, and vendors and suppliers. At the same time, it would interfere with attorney-client confidentiality and make it much more difficult for small businesses to secure a legal advice on labor issues. Particularly harmful during these times, the PRO Act would apply a failed policy from California to national labor law by using the “ABC” test to determine whether a worker is an independent contractor or employee. This makes it much harder to qualify as an independent contractor, threatening the freedom and flexibility that tens of thousands of Arizonans find in independent contracting and gig economy work. Ultimately, the PRO Act is bad public policy that only works for union leaders to inflate their falling ranks while threatening workers’ rights, undermining small businesses, and jeopardizing a growing part of our economy. This is not a good solution for Arizona, and Senators Sinema and Kelly should stay firm and not cosponsor this misguided legislation.
Read More