The National Labor Relations Board has become a partisan issue of late. After trying — and failing — to destroy secret-ballot union elections via “card check” legislation, President Obama turned away from the democratic process, and toward the NLRB, as a venue for advancing Big Labor’s interests.
To date, Obama has placed three people on the NLRB. During a congressional recess, he installed Craig Becker, who’d served as a top lawyer for two of the nation’s largest unions (the Service Employees International Union and the AFL-CIO), as a member of the board. He selected Mark G. Pearce — who had worked in “union side labor and employment law,” as his official NLRB bio puts it — as another. And Obama chose Lafe Solomon, a career NLRB lawyer, as the board’s general counsel.
Solomon promptly filed a complaint against Boeing, claiming the company had illegally discriminated against a unionized, strike-happy plant in Washington State when it chose to expand production in South Carolina, a right-to-work state, instead. And the board is trying to change the rules governing union elections so that companies have less time to mount anti-union campaigns.
These moves go beyond anything the NLRB has done in the past. But the current behavior of the National Labor Relations Board is only the outermost layer of the true problem: the National Labor Relations Act. In addition to creating a labor system that hurts non-union workers, forcing contracts upon unwilling participants, and engendering corruption, the 1935 legislation violates the Constitution, gives the NLRB the power to function as all three branches of government at once, and allows each president to stock the board with flagrantly biased nominees. President Obama may have abused the NLRA more than his predecessors did, but the NLRA is built for abuse. It should be repealed, or at least reformed.
The NLRA is also known as the Wagner Act, after Sen. Robert F. Wagner of New York, its sponsor. Before its enactment, private-sector employers had basically complete freedom in how they dealt with unionizing employees. They could, for example, simply fire workers who tried to unionize. Only 13 percent of the non-farm work force was unionized, but strikes were disruptive, and they were growing more frequent.
The stated justification for the NLRA was that strikes had hindered the free flow of commerce, and that strengthening unions and giving them a federally protected right to strike would somehow fix that. In reality, of course, Congress supported the law as a way of tipping the power balance toward unions and away from management. The NLRA was just one of many New Deal laws that accomplished this.