Finally, it’s time for the Trump NLRB to go on offense

Back in January, I bemoaned that the Trump administration had been dilatory in ensuring the National Labor Relations Board (NLRB) was empaneled with its customary majority of members of the president’s party and a confirmed general counsel—essentially the chief prosecutor or attorney general of labor-management relations. The delay in these confirmations has been problematic because the NLRB requires three affirmative votes to change its administrative precedents and continue the ongoing game of policy ping-pong this partisan institution plays whenever the presidency changes hands.

Without those officials in place, the Biden administration’s dead hand would continue to uphold several Biden- and Obama-era NLRB precedents that served union interests rather than workers’ interests. Well, they’re here now, and it’s time to advance the Taft-Hartley consensus.

In August, the Senate confirmed former senior Labor Department official James R. Macy to take the fourth, and crucially the third Republican-controlled, seat on the NLRB. Immediately following his swearing-in, General Counsel Crystal Carey issued a memo outlining her enforcement priorities and targeting many of those Biden-era innovations in labor-relations regulation for elimination.

Restoring the secret ballot

Restoration of secret ballot democracy in union elections is one of Carey’s top objectives. To get there, she needs to reverse Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130, a Biden-era NLRB action colloquially known as “the Cemex decision.”

First, some background. The standard method of determining majority support to compel employer recognition of a union has been a secret-ballot election held under onerous rules restricting employer speech. This is democracy, of a sort, but still problematic for the free-speech rights of employers (as discussed below) and other reasons.

But for Big Labor, this was still too restrictive. They have tried to replace secret ballots with public declarations of individual worker support on signed cards (aka: a “card check”). In the early Obama administration, legislation to this effect—the so-called Employee Free Choice Act (EFCA)—was offered but failed to pass the U.S. Senate.

EFCA failed because it was so unpopular that several Democrats (including party-switching Pennsylvania Sen. Arlen Specter) refused to support it. That meant that even with a near-to-effective supermajority during the era they could not carry Big Labor’s biggest priority over the finish line.[*] In short, “card check” had become a “Kick Me” sign that employee-freedom supporters could use to sink the bill, and they did.

But Big Labor does not go away quietly. After the usual NLRB ping-pong that flips labor-relations law on its head whenever the presidential party changes, the Biden administration’s NLRB (and its General Counsel, union lawyer Jennifer Abruzzo) used a dispute over employer conduct during a unionization election to enact what might snarkily be called the “stop the steal” rule.

In essence, the Cemex decision held that if the NLRB thought the employer had broken the rules, it could deem the union the winner of a vote it had lost (rather than re-running the election, the longstanding standard response to results-determinative employer violations). There was even a stipulation that under certain circumstances the NLRB could waive having an election at all if the employer missed certain timelines.

The Cemex decision was legally problematic, and the precedent the Biden NLRB has set was challenged in federal courts. But now, Carey has targeted the Cemex decision for reversal, arguing the decision is “contrary to Supreme Court precedent and sound labor policy.” As labor policy expert Vinnie Vernuccio of the Institute for the American Worker explains:

Her [Carey’s] brief notes that the Biden-era board ignored “the significant impact its decision had on worker free choice,” which she rightly calls a “backbone” of federal labor law. The General Counsel’s ultimate point could hardly be clearer or more pro-worker: “The right of employees to vote in a secret ballot election, free from coercion and from an informed position, once meant something — it should again.”

Contract-less dues

Union dues collections, though established by unions’ own constitutions and bylaws, are generally regulated by the collective bargaining agreement covering a unionized workplace. The most notable such regulation is the “union security clause” enshrining forced agency fees in private-sector workplaces in non-right-to-work states and the railroad and airline industries.

A lesser-thought-about regulation is the “dues checkoff,” the practice of the employer withholding union dues (or compulsory agency fees) from workers’ paychecks. This is similar to income tax withholding, and Big Labor likes it for the same reason the IRS does: it ensures a constant flow of revenue to which the payor doesn’t pay much attention. Employers don’t care much about it relatively speaking; other concessions to unions can be much, much more expensive than the differential price of payroll administration.

So, union contracts usually contain a dues checkoff. But what happens when the contract expires? There being no contract, doesn’t the checkoff agreement expire?

Historically, the answer was “yes,” unless the employer voluntarily retained the checkoff. But the Obama administration NLRB then ruled “no,” compelling employers to keep processing dues through the payroll system. The first Trump administration re-ruled “yes,” but then the Biden administration ruled “no” again. (See what I mean about ping-pong?) And now, it’s the second Trump administration’s turn to strike the ball, and Carey has expressed her intention to challenge the Biden ruling.

Management speech

I previously noted the many “bars” the NLRB has established to workers removing an unwanted union once it has been established in a workplace, comparing union organizing elections to the “one man, one vote, once” principles of 20th century strongmen. The situation is actually worse than that for informed worker choice, because the Biden-era NLRB restricted employers’ ability to present their cases against unionization to their workforces.

The government has restricted union talk by employers since the Wagner Act was adopted in the 1930s, initially severely restricting employer speech. In the 1940s, Congress adopted an employer “free speech clause” in the Taft-Hartley amendments, which in the words of the NLRB “provid[es] that the expression of views, arguments, or opinions shall not be evidence of an unfair labor practice absent the threat of reprisal or promise of benefit.”

Employer speech remains restricted on the grounds that it can be perceived as a threat to worker free choice. Many attorneys and consultants make very good money coaching employer representatives and presenting employers’ cases to workers facing unionization by their workers because they have expertise in exactly where labor regulators draw the “threat of reprisal or promise of benefit” lines.

In any case, employers are still permitted to present their case about unionization efforts if they follow those rules. This is gravely irritating to organized labor, which would like to make its campaign promises—and that is all they are—without opposition.

Unable to repeal an Act of Congress with regulatory action or contrived case law, supporters of organized labor instead have targeted employers’ ability to obtain an audience for their case. This is hypocritical because longstanding NLRB rules give union organizers personal contact information for every relevant worker including his or her home address to assist their campaigns. This gives union organizers the ability to canvass after hours at workers’ homes, making life awkward for workers who would rather the canvasser go away.

Traditionally, employers have their own reciprocal method to ensure workers at least pretend to hear the employer’s case: a mandatory all-staff meeting at which the aforementioned legal consultants present information about unionization the friendly (or not-so-friendly, given unions’ history of corruption) union organizer who showed up at workers’ houses probably didn’t.

But the Biden NLRB, seeking to ensure that one worker gets one vote one time without meaningful opposition to the “correct” choice, banned such meetings. (Some states, most prominently Big Labor’s Golden California, have also done so with state legislation.) Carey expressed a desire to reverse that ruling and restore the former standard at the federal level (whether the state laws would then be preempted is a separate legal question) in her memo; doing so would restore a semblance of fairness to a unionization election process that sees unions win roughly two-thirds of the time.

Let the ping-pong begin

After more than a year’s delay due to the administration’s dilatory approach to staffing the agency, the new NLRB majority and its aggressive general counsel are ready to go to on offense and restore longstanding practices to union-management relations that respect individual worker rights rather than pander to union special interests. Now that General Counsel Carey has laid out her priorities (which go beyond these three issues), it’s time for the change that those who remembered the labor-relations policies of the first Trump administration were hoping for when Big Labor’s preferred candidate lost the 2024 presidential election.

***

[*] With Specter’s party switch, the delay adjudicating the election of Sen. Al Franken (D-MN), and finally the special election victory of Sen. Scott Brown (R-MA), the Democratic caucus fluctuated at or just below the 60-vote filibuster threshold.

Source: https://capitalresearch.org/article/finally-its-time-for-the-trump-nlrb-to-go-on-offense/