As the 114th Congress kicks-off, labor reform seems to be on the minds of the GOP. On January 28, Sens. Mitch McConnell (R-Ky.) and Lamar Alexander (R-Tenn.) introduced the National Labor Relations Board Reform Act while Rep. Steve King (R-Iowa) sponsored the National Right to Work Act.
The NLRB Reform Act is a step in the right direction, but does not sufficiently reduce the authority of the agency. Yet, it would likely prevent Board case precedent from flip-flopping in favor of whichever major political party holds the executive office, which has created an “ever-changing regulatory landscape [that] makes compliance with the National Labor Relations Act (NLRA) arduous for employees, employers, and unions.”
The bill would make it difficult for the NLRB to issue biased decisions by adding another member to the five-person Board. Meaning that three members would be from GOP/employer-side law firm ranks and the other three from Democrat/union-side law firm backgrounds. For the Board to issue a decision it would require four members to agree, which hopefully would cut down the amount of highly partisan rulings.
Another component is that the bill reins in the NLRB’s General Counsel’s power, a much needed reform since the NLRB acts as judge, jury, and executioner. Under the NLRB Reform Act an individual alleged to have committed an unfair labor practice by the General Counsel may seek review of the charge in a U.S. District Court, where the court may “prohibit any further proceedings relating to such complaint if the court determines that the General Counsel does not have substantial evidence that such person has violated this [National Labor Relations] Act.”
Last, the NLRB Reform Act permits “either party in a case before the board may appeal to a Federal Court of Appeals if the board fails to reach a decision in their case within one year.”
Instead of tweaking the size and scope of the Board and General Counsel’s authority, Congress should enact an amended version of the National Labor Relations Reorganization Act of 2011. As I note in the Competitive Enterprise Institute’s “Free to Prosper: A Pro-Growth Agenda for the 114th Congress“:
Congress should abolish the agency or strip it of its adjudication and rulemaking authority. The Board no longer operates as it was intended by Congress—as a neutral arbiter in labor disputes. Worse, federal courts routinely give judicial deference to the NLRB on the basis of the board members’ “expertise,” which, as former NLRB member John Raudabaugh notes, has “proven nonexistent when case precedent is flip-flopped correlated only with political party majorities.” Congress should pass an amended version of the National Labor Relations Reorganization Act (NLRRA) of 2011, which would abolish the Board. The current version of the NLRRA transfers the NLRB’s enforcement authority to the Department of Justice, and its rulemaking and election duties would be transferred to the Department of Labor. The bill should be amended to send NLRA disputes to an Article III court, where judges serve lifetime appointments, unlike NLRB members, who serve five-year terms and are therefore highly politicized.
The other GOP labor reform bill introduced last month was the National Right to Work Act, which would end forced union dues payments as a condition of employment in the private-sector.
Ending forced union dues payments is a good start. However, ending exclusive representation is a more important reform. Under the National Right to Work Act, unions may not force employees to pay for union representation, but workers would still be represented by the union and forced to work under the contract that the union negotiates.
Currently, under the NLRA, a worker’s freedom to choose how they are represented at the workplace is restricted by the principle known as exclusive representation. This restriction should be lifted.
Section 9(a) of the NLRA requires that if a majority of employees at a company vote in favor of union representation for the purposes of collective bargaining that union is the exclusive representative of all the employees at that workplace, even workers that voted against unionization.
No worker should be forced to accept representation they do not want or did not vote in favor of. However, under the NLRA, once a union wins an election they speak for all employees on all matters of pay and working conditions as their exclusive representative.
The exclusive representation provision prohibits an individual worker, who is opposed to union representation, to choose other representation or to represent themselves.
Eliminating exclusive representation would make unions more receptive to the needs of its membership and provide workers the ability to negotiate the terms of their employment that represent their needs, instead of being forced into a contract covering all workers.
No bill has been introduced to eliminate the exclusive representation provision in the NLRA. However, the New Zealand Employment Contracts Act would be a model to follow, which allows workers to choose their own representation.
For more labor and employment policy reforms, check out CEI’s new agenda for Congress.