President Obama visited a Fairfax, Va., family last September to promote his Administration’s agenda before the 2010 elections. Asked about the prospects for passing the Employee Free Choice Act, i.e., card check, the President said [our emphasis]:

Frankly, we don’t have 60 votes in the Senate. So the opportunity to actually get this passed right now is not real high. What we’ve done instead is try to do as much as we can administratively to make sure that it’s easier for unions to operate and that they’re not being placed at an unfair disadvantage.

The move (discussed below) by the National Labor Relations Board to redefine acceptable bargaining units and allow “micro unions” sure looks like the President’s plan put into action, doesn’t it? Don’t pass a law, don’t even hold a formal rule-making procedure, just solicit amicus briefs and then issue a ruling that overturns decades of precedent and rewrites labor law.

Three U.S. Senators have registered their objections to the NLRB’s attempt to circumvent the policymaking branch of government, Congress. In a March 8 letter to the board, Sens. Mike Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA) wrote:

As United States Senators and members of the Health, Education, Labor and Pensions (“HELP”) Committee, we have a vested interest in the outcome of the underlying case. When an independent government agency, acting within its discretion, creates policy that conflicts with federal statute, or attempts to circumvent the legislative or rulemaking process, Congress must weigh in to ensure constitutional boundaries are not crossed. What we have learned from various stakeholders is that the decision in Specialty Healthcare could result in changing the determination of appropriate bargaining units in every workplace under the Board’s jurisdiction. We believe such a major change should only be done by amending the statute, which is the exclusive province of Congress.

The Senators acknowledged that the board can at times change policy through adjudication, i.e., ruling on a case, and it would be appropriate to seek amicus briefs in those circumstances. However, that process should not be a substitute for formal rulemaking, they argued.

The NLRB voted 3-1 to go ahead with its review in the Specialty Healthcare case, with the three votes coming from the Democratic members: Chairman Wilma Liebman, former labor lawyer Mark Pearce, and former SEIU and AFL-CIO counsel Craig Becker, a recess appointee. In his dissent, the sole Republican on the board, Brian Hayes, delineated how the majority’s overreach in entering the policymaking realm. Indeed, neither of the two parties in the case sought the broad review the board is undertaking. Hayes concluded:

[There] is real reason to fear that my colleagues’ ultimate purpose is to use this case as a vehicle for abnegating the statutory requirement in Section 9(c)(5) that “[i]n determining whether a unit is appropriate . . . the extent to which employees have organized shall not be controlling.” In some circumstances, it might be prudent for a Board Member to let the process play out before dissenting. Not here. There is too much at stake, both for the sake of industrial stability and for the Board’s reputation as impartial overseer of the representation election process. I find that there are no reasons at all to reconsider our unit determination policies, by adjudication or rulemaking, either in the nonacute health care industry or more generally in all industries. There are sound reasons not to do so, perhaps most significantly the risk that we may contravene our own Act, express Congressional intent, the experience informing our health care unit rules, and the Administrative Procedures Act.

Perhaps the NLRB will pull back, realizing the attempt to impose such a radical rewriting of labor law to the advantage the unions will appear nakedly political, ultimately illegitimate and invite a congressional rebuke.

But such restraint wouldn’t achieve the President’s stated objectives, would it?

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