In President Obama’s Jan. 24 State of the Union address, he called for fairness for manufacturers and other businesses competing with overseas firms, stating “if the playing field is level, I promise you America will always win.” Why the White House has failed to apply the same philosophy domestically is puzzling—particularly with labor relations in the construction industry.
The president’s track record on fairness is disappointing. In one of his first official acts, Obama signed an executive order on federal project labor agreements that discriminates against the 86 percent of the construction workforce that chooses not to belong to a labor union.
More recently, the
Department of Labor proposed its “persuader” disclosure rule (scheduled to be finalized in August), which would deprive employers of their right to free speech, freedom of association and legal counsel, as well as deprive employees of the right to a balanced decision on union representation.
During the last year, the National Labor Relations Board (
NLRB) issued decisions, enforcement policies and rules designed to silence employers and grant vast new influence to organized labor.
If left unchallenged, the tactics used by the current administration to ram through such policies will expand presidential power and fundamentally rewrite federal labor law while continuing to stifle job creation and economic growth.
President Obama’s ‘Recess’ Appointments
On Jan. 4, Obama brazenly ignored constitutionally established separation of powers and the rules of the U.S. Senate by “recess” appointing three new members to the NLRB while Congress remained in session. Deriding the so-called “pro forma” sessions as “gimmicks” and labeling them a “sham,” the White House stepped into uncharted legal territory and raised the ire of elected officials, legal experts, media outlets and employer groups, including Associated Builders and Contractors (
ABC). The flood of condemnation due to the president’s decision to appoint Sharon Block (D), Richard Griffin (D) and Terry Flynn (R) to vacant seats on the NLRB was immediate and pointed.
The president’s actions show a blatant disregard for the Constitution and decades of legal opinion. If allowed to stand, the appointments set a chilling precedent for presidential power that vastly exceeds what the Founding Fathers envisioned. The move essentially gives the White House unlimited power to appoint any person to any federal post without any meaningful review by the Senate. In practical terms, this means no congressional checks on appointments of controversial individuals to key posts; diminished public accountability for vast, unelected bureaucracies; and more job-killing, anti-business policies and regulations with which to contend.
On Jan. 13, the ABC-led Coalition for a Democratic Workplace (
CDW) filed a legal challenge against the president’s actions aimed at restoring the system of checks and balances prescribed in the Constitution. In addition, efforts are under way in Congress to investigate the White House’s actions leading up to these appointments and to limit the president’s ability to issue future recess appointments.
NLRB Finalizes ‘Ambush Lite’ Elections
On Dec. 22, 2011, the NLRB issued a final rule implementing provisions of a larger proposal to fundamentally transform union representation elections. The rule, effective April 30, 2012, includes certain provisions of a June 2011 proposed rule (commonly referred to as the “ambush” elections proposal).
The original proposal would have reduced the amount of time an employer had to provide a list of eligible voters from seven days to two days. In addition, the proposal would have required the list to be submitted electronically and include employees’ email addresses and phone numbers. ABC and others argued the proposal significantly limited an employer’s ability to educate employees about the pros and cons of union representation.
Under the modified final rule (dubbed “ambush lite”) issued in December, the NLRB tabled some provisions, but retained limits on the issues an employer could raise at pre-election hearings, and curbed an employer’s opportunity for appeals. The revised rule is still highly alarming for employers because it shortens election time frames drastically, with experts estimating action within 14 to 24 days.
The NLRB hastily expedited publication of the ambush lite rule in an attempt to finalize it before Board Member Craig Becker’s term officially expired Jan. 3. Prior to the president’s controversial “recess” appointments, Becker’s departure left the board with only two members, which the U.S. Supreme Court ruled in 2010 to be insufficient to constitute a quorum. ABC and others publicly criticized the board’s fast-tracking of the rule, and the CDW again filed a legal challenge to block it.
Despite the formidable legal challenges facing the NLRB and the White House, expect more policies aimed at silencing employers’ voices in the workplace, and an agenda that will continue to promote the special interests of politically powerful unions in the months to come.