Only One Option to Rein in Politicized NLRB: Eliminate Appropriations

In a recent Forbes article, my colleague Wayne Crews explains that “federal regulation matters more than spending.” On the flip side, one of the only ways the current Congress can rein in federal regulation is to defund agencies that no longer serve the public good.

One of the most politicized agencies, which has far outlived its usefulness and funds should be eliminated, is the National Labor Relations Board. Here is a list of some NLRB decisions and regulations that exemplify the agency’s pro-union leanings.

  • Ambush elections. The rule amends Board representation case procedures (union elections) to tilt the playing field in favor of unions. It is deliberately constructed to limit debate by minimizing the time workers have to educate themselves on union representation. Specifically, the rule would shorten the time frame between the filing of a petition and the date on which an election is conducted to as little as 14 days. The rule also would compel employers to provide union organizers with employees’ contact information, which puts all private-sector workers at greater risk of harassment, intimidation, and identity theft.
  • Extended protected concerted activity protections to allow racist slurs, cursing, and vulgar gear in the workplace.

  • Micro-unions. The Board in Specialty Healthcare redefined what constitutes an appropriate collective bargaining unit to ease union organizing efforts. Under the new standard, unions now may gerrymander the workplace.

  • A NLRB decision overturned longstanding legal precedent when it ruled a television station must continue to deduct union dues from the paychecks of workers who authorized such deductions even though the collective bargaining agreement those dues supported has expired.
  • While the NLRB has eased the path to unionization, the Board has issued a decision that makes getting rid of an unwanted union even tougher.
  • Prospective action to undermine right-to-work protections. Currently, the NLRB is asking for amicus briefs on whether to charge non-union members in RTW states for union representation in greivance procedures.

Thankfully, the idea of eliminating appropriations to the NLRB is gaining steam. U.S. Rep. Matt Salmon (R-Ariz.) introduced legislation to defund the NLRB. In addition, the U.S. House of Representatives Appropriations Subcommittee Department on Labor, Health and Human Services, Education, and Related Agencies draft bill for Fiscal Year 2016 proposes to prohibit funds to implement the ambush election rule, which I suggested here, and a couple other pro-union NLRB objectives.

One reason that Congress is proposing such a seemingly extreme measure is that the NLRB, as composed, is able to wreak havoc over private-sector labor relations. Because the Board members are political appointees with a majority consisting of the party that holds the executive office, it results in national labor policy flip-flopping depending on whether a Democrat or Republican is president. Under the Obama administration, as illustrated above, the Board has done everything in its power to pay back unions for their massive political contributions.

It is not just speculation that the NLRB has a union bias. Former NLRB member John Raudabaugh conducts research that follows how NLRB members vote. Raudabaugh’s research provides evidence that Democratic members of the Board side with unions more often than not.

Moreover, the NLRB is doing less work than ever but has asked for $4 million in additional funds this year. As Kathy Hoekstra notes in The Detroit News, the NLRB continues to receive more in appropriations annually even though its caseload has decline year-in and year-out:

Former NLRB lawyer John Raudabaugh analyzed the Board’s use of taxpayer dollars from 1980 to 2014 to show overall funding for the NLRB has technically declined, at least in terms of 2014 dollars. The board’s 1980 federal allowance was $112 million, which would be $324 million in 2014 money. That compares with 2014 actual funding of $274 million.

But that money buys less each year. From 1980 to 2014, the NLRB’s caseload has plummeted nearly 60 percent, from more than 57,000 cases to 24,200. So have the board’s published decisions — 1,343 in 1980 to just 197 last year.
This means Americans paid almost $83,600 per published decision in 1980 ($241,470 in 2014 dollars). In 2014, we forked over $1,392,000 per decision.

The lower caseloads and decisions are not due to a growing harmony between unions and management, or even greater efficiency from NLRB bureaucrats. Instead, the change reflects private sector union membership that has taken a nosedive from 22 percent of the workforce in 1980 to just 6.6 percent last year.

As I’ve suggested before, the tasks of a defunded NLRB could be transferred to a newly created Article III federal district court for workplace disputes, which would bring back some semblance of neutrality back to labor relations.