- - Monday, May 25, 2015

ANALYSIS/OPINION:

Two of Sen. Harry Reid’s controversial legislative maneuvers are coming back to haunt American workers. In 2013, then-Majority Leader Reid’s threat to eviscerate the judicial filibuster cowed enough Senate Republicans to approve Big Labor’s handpicked candidates to the National Labor Relations Board (NLRB). A few months later, Mr. Reid acted on his threat to gut the filibuster and installed three of President Obama’s nominees on the D.C. Circuit Court of Appeals.

The D.C. Circuit is often called the second-most powerful court in the country because it hears most appeals from federal agencies, and critics warned that the newly installed judges would simply enable the Obama administration’s efforts to remake American labor law through the federal bureaucracy. The NLRB’s recent maneuvers in Laura Sands v. NLRB show just how prescient those warnings were.

Kroger employee Laura Sands‘ case originated in 2005, when she filed an unfair labor practice charge against a United Food and Commercial Workers (UFCW) local with the help of National Right to Work Foundation staff attorneys. UFCW union officials failed to disclose basic information about their financial expenditures to Ms. Sands before she decided to leave the union and opt out of paying dues unrelated to workplace bargaining, thus preventing her from making a fully informed choice.

In 25 states without Right to Work laws, non-union employees can be forced to pay union dues as a condition of employment. However, the Supreme Court has long held that workers have the right to opt out of dues for anything unrelated to workplace bargaining, most notably union politics. This modest check on union officials’ forced-dues collection racket is supported by case law requiring unions to open their books to employees.

Abrams v. Communications Workers of American (1995) and Penrod v. NLRB (2000), two D.C. Circuit Court rulings won by foundation staff attorneys, established that union officials must provide workers with an independently audited breakdown of their expenditures and a statement of how much money can be saved by opting out of dues for union politics.

The reasoning behind these precedents is simple: To make an informed choice about whether to leave a union and stop paying full dues, employees should know how much of their hard-earned pay goes for things like union politics. Union officials shouldn’t be allowed to hide this vital information from the very workers they claim to represent as a way of discouraging employees from leaving a union.

Yet that’s exactly what will happen if the Obama NLRB gets its way. In Sands, the board has asked the D.C. Circuit Court of Appeals to overturn its Abrams and Penrod precedents. Simply put, the Obama labor board — which already has a well-earned reputation as a friend of Big Labor — is trying to keep workers in the dark about one of the most important decisions you can make in a unionized workplace.

The NLRB’s gambit would prevent workers from getting their hands on any information about the money they have to fork over to a union until after they’ve decided to resign their membership and stop paying full dues. Instead of making an informed choice, employees would be left guessing at how much money they’d save by opting out.

Less information about the real costs of union membership means that fewer workers would to be willing assert their right to stop paying dues for union politics, a process that is already fraught with bureaucratic obstructionism. The Obama labor board’s latest ploy would funnel even more forced-dues cash into Big Labor’s political warchest, which is almost certainly the point.

Considering the Obama board’s pro-forced-unionism bent, none of this is surprising to veteran NLRB watchers. What’s changed is the D.C. Circuit Court, which has jurisdiction over the NLRB and traditionally serves as a check on the board’s pro-union excesses. After Mr. Obama’s latest judicial appointments, the NLRB wants to strike while the iron is hot and convince the court to reverse its Abrams and Penrod precedents.

In Sands, the NLRB has taken the nearly unprecedented step of asking the D.C. Circuit Court to skip the usual three-judge panel and go straight to an en banc hearing, which involves all 11 active justices, including Mr. Obama’s three most recent appointees. The board claims this maneuver is necessary because three-judge panels are not allowed to overturn existing precedents.

The Obama labor board is playing a long game, and the outcome of the Sands case could be the culmination of Big Labor’s strategy of packing the courts and the federal bureaucracy with pro-forced-unionism ideologues. If the NLRB is successful in Sands, it will be a significant defeat for employee rights, as well as an ominous sign that an important judicial check on executive overreach has been reduced to a rubber stamp for the Obama administration and its Big Labor allies.

Mark Mix is president of the National Right to Work Foundation.

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