Will any Senate Democrat stand up to Obama’s NLRB?

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With the spectacle of Senate Budget Chairman Kent Conrad being forced to back down on actually offering a budget, it’s clearer than ever that Senate Democrats are pursuing a deliberate strategy of doing nothing, blocking House-passed bills and giving President Obama a free hand to use regulators and bureaucrats to push his agenda forward. The Senate has already failed to stand up to the EPA’s back-door cap-and-trade energy taxes and the FCC’s self-created legally dubious power to regulate the Internet. Next week we’ll find out if there are any Senate Democrats willing to stand up to the NLRB bureaucrats who are imposing the failed card-check legislation in bite-size pieces via bureaucratic decree.

The NLRB is giving the EPA a run for our money in the race to see which agency can cause the most damage to our free-market economy. Not only did the NLRB infamously sue Boeing for opening a new plant in a right-to-work state, it is now suing the state of Arizona to overturn the state’s constitutional guarantee of secret ballot protections in union organizing elections. It has also pursued a dizzying array of regulations and decisions designed to force workers into unions against their will.

The NLRB suffered a setback this week when a district court struck down its rule forcing employers to display posters in the workplace touting the benefits of unionization. Next week it could be dealt an even bigger blow if just a handful of Senate Democrats stand up for the economic interests of their constituents and the basic constitutional principle that the people’s elected representatives should make the laws in this country.

The vote is on Senator Mike Enzi’s (R-WY) Congressional Review Act (CRA) resolution of disapproval, S.J. Res 36, which would simply overturn the NLRB’s ambush elections rule, which allows union organizers to spring elections on employers and workers. Because of the CRA’s special procedures, the resolution cannot be filibustered and therefore needs just 51 votes to pass. All but two Republicans — Lisa Murkowski (R-AK) and Scott Brown (R-MA) — are cosponsors, but not a single Democrat has signed onto the resolution.

The ambush rule at issue was forced through the NLRB on a 2-to-1 party-line vote late last year, just before infamous union lawyer Craig Becker’s recess appointment to the board expired. It could be the last action of the NLRB that will have legal force for some time, because after Becker expired at the end of the year, the board lacked the quorum necessary to make decisions and issue rules. (Obama tried to re-establish a quorum by non-recess-appointing another radical union lawyer, Richard Griffin, among others, but those appointments should be found invalid in court.)

The ambush rule is a prime example of the NLRB advancing an element of legislation already rejected by Congress and putting the interests of labor bosses above those of workers. After the first version of card check that eliminated private ballot elections entirely crashed into a wall of public opposition, a revamped version of the legislation retained elections but allowed union organizers to catch workers and employers by surprise with ambush elections. That version also failed in Congress, but the NLRB is pretending it passed and moving forward just the same.

The current average period before an election after a union files a petition is 38 days. This gives both the union and management an opportunity to explain the facts and ensure workers understand the high stakes in a representation election. The new rule will shorten it to as little as 10 days and eliminate procedural safeguards employers currently have to make sure union elections are duly authorized and eligible workers are properly defined before an election takes place.

NLRB Chairman Mark Pearce has indicated that if the rule stands he intends to go much further. “We keep our eye on the prize,” Pearce said in January, promising to force employers to make confidential employee information, including phone numbers and email addresses, available to union organizers. That would potentially expose workers to harassment, intimidation or even violence.

The vote on S.J. Res 36 will give the Senate an opportunity to exercise its constitutional duty under Article I, Section 1 and stop the usurpation of legislative power by unaccountable federal bureaucrats at the NLRB. Unfortunately, it appears likely that once again Democratic senators will find it more convenient to obstruct and allow the Obama administration a free hand to govern by regulation.

Voters should watch next week’s vote with this question in mind: If my senator will not do the job of legislating, shouldn’t I elect someone who will?

Phil Kerpen is the president of American Commitment and the author of Democracy Denied.

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