Bring federal labor law into the 21st century 

A New York Times headline in January told the story: “Union membership in U.S. fell to 70-year low last year.” The actual numbers from the Bureau of Labor Statistics were even more dismal than suggested by the headline: Whereas at its peak in the mid-1950s nearly 40 percent of all employed Americans were union members, by 2010 it had fallen to a mere 11.9 percent, counting both public- and private-sector employment. In the private sector alone, a mere 6.9 percent of all workers were unionized, the lowest in more than a century. Also notable here is that in 2009, for the first time ever, more than half of all unionized workers were employed by tax-funded local, state or federal governments rather than profit-driven private businesses.

These trends became evident at the same time that union leaders had unlimited access to what were most likely their most sympathetic president and Congress ever, in great part because the labor chieftains spent nearly half a billion dollars on behalf of Democratic incumbents and candidates in the 2006 and 2008 elections.

With President Barack Obama and a Democratic Congress, unions appeared certain to get their No. 1 legislative priority — card check, which would have abolished secret ballots in workplace-organizing elections. With card check as law and Obama putting labor favorites in all the key positions at the Department of Labor and National Labor Relations Board, surely the decline in union membership would be reversed.


Instead, card check is a dead letter in Congress, and about all that labor has left is a bunch of Obama appointees who are determined to grab as much power as possible via the federal bureaucracy. Nowhere, as The Weekly Standard’s Mark Hemingway recently noted, is this more evident than at the NLRB where board member and former union lawyer Craig Becker has pushed the union regulatory agenda to radical new extremes. “Obama placed Becker on the NLRB with a recess appointment. Within three months, the National Right to Work Foundation had filed 13 motions noting Becker’s conflicts of interest in decisions before the NLRB. Oblivious, Becker has participated in handing down rulings in at least 17 cases involving unions he represented as a lawyer. In each of those cases save one, Becker ruled in favor of the unions,” Hemingway said.

As a result, NLRB in recent months has exceeded its authority beyond anything recognizable in its enabling law, the National Labor Relations Act of 1935. The NLRB has presumed to tell Boeing that it cannot build a new plant in South Carolina, a right-to-work state, but must instead do so in Washington state, which is not.

The Becker board has also sought to implement card check via regulation by suing Arizona and South Dakota in seeking to nullify last November’s elections in which voters approved state constitutional amendments designed to protect secret ballots in the workplace.

Clearly the time has come for Congress to rethink federal labor law using a clean sheet of paper. The NLRA and the NLRB were designed for an industrial economy that no longer exists.

As relics of 1930s-style top-down command-economy thinking, the NLRA and NLRB simply cannot adapt to a decentralized digital economy in which fewer than one in 10 private sector workers carry union cards. And with Obama appointees like Becker in charge, they have become obstacles to freedom and progress in America’s workplaces.

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