The National Labor Relations Board: Defying the Rule of Law for Big Labor’s Benefit

It’s no accident that several United States Circuit Courts of Appeals have blasted the NLRB for defying their orders.

That’s because when Big Labor speaks, their pet bureaucrats in Washington listen.

Many people ” including some in the Congress ” wonder why enforcement of Communications Workers v. Beck is proceeding more slowly than hoped. It’s true that union officials work overtime to keep their illegal forced-dues-for-politics-pipeline flowing.

But enormous opposition is not new to union-abused workers and their National Right to Work Foundation attorneys. To win Beck in the first place, Foundation attorneys had to beat the AFL-CIO and the Solicitor General of the United States, who opposed Harry Beck.

The biggest single obstacle to worker freedom is Big Labor’s secret weapon, the specially granted package of powers and privileges handed to union officials with the 1935 passage of the National Labor Relations Act ” and the NLRB, which is charged with its administration.

NLRB Sidesteps Federal Court Doctrine

In Bloom v. NLRB, the 8th Circuit Court of Appeals blasted the NLRB for disobeying its prior ruling in the same case, ordering the Board to replace illegal language requiring workers to “become and remain members in good standing of the union as a condition of employment.” (See feature story, Marquez and Bloom: "Term of Deceit.")

This practice allows union officials to deceive employees into bankrolling the union’s political agenda. Meanwhile, illegally collected dues for politics continue to swell union officials’ coffers.

Because of these illegally worded bargaining agreements, during the recent Teamsters strike, for example, thousands of UPS workers remained in the dark about their right to resign from the union and go to their jobs without legal union retribution.

NLRB Promotes Illegal Union Political Spending

In the Foundation’s Bodenstein v. Carpenters/AFL-CIO case, NLRB General Counsel Fred Feinstein decreed that a worker’s forced-dues share of the AFL-CIO’s $150 million budget is

"de minimis," or too little to bother with. This ignores the Foundation-won Beck decision’s clear-cut protections against such abuse.

The case arose when Jack Bodenstein objected to the portion of his forced dues which comprised the AFL-CIO’s dues assessment, which amounted in his case to about 9 dollars a year.

Multiplied by the AFL-CIO’s nearly thirteen million members, the per-capita forced dues windfall comes to a de maximus $100-plus million annually. Feinstein remains unpersuaded by the arithmetic, and the Board is not likely to revisit this issue any time soon. However, the Foundation’s attorneys are pressing Feinstein to reject such bizarre logic.

NLRB General Counsel
Fred Feinstein

Knowing that the NLRB had cleared the way for his political spending campaign, AFL-CIO chieftain John Sweeney recently announced that the AFL-CIO’s per capita “assessment” will be increased by five cents per month per member” thus netting the giant union an additional $8 million per year for even more politicking.

Of course, experts estimate that organized labor spent $1/2 billion in 1996. This additional assessment is just more insult added to injury.

Labor Law by Bureaucratic Fiat

In California Saw & Knife Works, Inc., 320 NLRB 224 (1995) ” the first NLRB ruling implementing the Supreme Court’s Beck decision of seven years earlier ” the Board decided to gut rights under Beck and scatter Supreme Court doctrine to the four winds.

After arguments by Foundation attorneys, the U.S. Circuit Court of Appeals for the District of

Alan Strang

Columbia blasted California Saw as “not rational,” and declared that private-sector workers have the same right to independently verified audits of union political spending as public-sector workers ” a ruling the NLRB will doubtless ignore.

The California Saw decision was itself the result of over a decade of NLRB foot-dragging and stonewalling. Foundation attorneys first filed charges in this case on behalf of technician Alan Strang and three other Milwaukee employees in October 1985.

The Strang case and other forced-dues cases languished in the bowels of the NLRB for ten years.

NLRB: Threats of Violence Against Kids Permissible

Last year, in HCF Inc. and SEIU, 321 NLRB 171, the Board ruled that a union militant who threatened an employee into signing a union authorization card was not acting as a “representative” of the union. The union activist told the worker that if she did not sign the card, the union would "slash her car tires” and would "come and get her children."

This ruling ignored the Board’s own decision in a previous case that “employees who solicit authorization cards should be deemed special agents of the union” for the purpose of evaluating such statements.

But the Board ruled that since threats of violence could not be considered a “purported union policy,” that the union militant in question was not acting as an agent of the union when he made the threat ” only when he proffered the card he had just threatened her into signing.

As a result of this decision, the union certification election which ensued was allowed to stand, even though votes had clearly been obtained under threat of violence.

Federal Courts: NLRB Intransigent, Biased

Federal Courts have blasted the NLRB for its lawlessness:

  • U.S. Court of Appeals for the Second Circuit flayed the Board’s “warped interpretation of facts” and “decidedly pro-union bent” which lead to “an unconscionable result.” Spentonbush/Red Star Companies v. NLRB, 106 F.3d 484 (2d Cir. 1997).

  • The Fourth Circuit recently reversed a Board order which would have forced unionization at a supermarket chain without an election by its employees. The Court scolded the Board for “undertaking only the most superficial analysis of alternative remedies” before instituting forced unionism with the stroke of a pen. Be-Lo Stores v. NLRB, No. 96-1657, slip. op. at 22 (4th Cir. Sept. 16, 1997).
  • The D.C. Circuit (which also decided Ferriso v. NLRB) again hammered the Board in ardent language. One concurring recent opinion stated that a ruling by the Board was “simply a way to tell this Circuit to go fly a kite.” Lee Lumber v. NLRB, 117 F.3d 1454 at 1463.
  • A second concurring opinion in the same case, by Circuit Judge Sentelle, was equally withering: “To presume that employees are such fools and sheep that they have lost all power of free choice based on the acts of their employer, bespeaks the same sort of elitist Big Brotherism that underlies the imposition of the invalid [mandatory] bargaining order in this case.” Ibid. at 1463.

    Judge Sentelle did not stop there:

    [The Board presumes that] the employers’ refusal for a few days to bargain with the Union thoroughly fooled those poor deluded employees to such a point that neither the Union nor anyone else could possibly educate them of the truth, known only to their Big Brother, the Labor Board. . . . That is, the Board has reasoned that the working class is composed of individuals not competent to determine their own best interest or even to know their own minds. I cannot in good conscience. . . support such administrative arrogance. Id. at 1463-64.

  • And of course, the Eighth Circuit was merciless in its forceful rebuke of the agency’s practices in Bloom v. NLRB. (See feature story, Marquez and Bloom: "Term of Deceit.")

Other appellate decisions across the country have been no less critical of the Board’s refusal to acknowledge precedent which does not coincide with its own interpretation of labor law, which reeks of an anti-employee bias.

The Foundation’s Mission

We have fought for workers for 30 years to enforce the existing protections against compulsory unionism abuses and to establish new rights through litigation in the courts. Currently, the Foundation’s expert legal team is enforcing the Beck decision in hundreds of cases on behalf of tens of thousands of workers. No nationwide other organization is equipped to help workers confront all these obstacles at the NLRB and elsewhere.