The National Labor Relations Board’s union-boosting has taken a new and troubling turn…repudiating the will of voters who would make unions show by secret ballot that they really represent employees.

The NLRB has threatened four states, whose voters passed initiatives last year barring employers from recognizing unions except following a secret ballot election, with lawsuits claiming the state measure are preempted by the National Labor Relations Act.  The Board’s Acting General Counsel, Lafe E. Solomon, on behalf of the agency, on January 13 notified the attorneys general of Arizona, South Carolina, South Dakota, and Utah that the measures would run afoul of the federal statute’s preemptive authority in the field of labor relations.  Solomon opined, “By closing off an alternative route to union representation authorized and protected by the NLRA, [the amendments create] an actual conflict with private sector employees’ Section 7 [NLRA] right to representatives of their own choosing.”  Expressing concern that employers, under pressure from state law, might refuse to recognize — or withdraw recognition from — unions “lacking an election victory,” or that represented employees might bring actions under the new requirements against such unions and their employers asserting violations of state constitutional rights, Solomon asked the attorneys general to consent to a judicially approved stipulation that the measures are unconstitutional.  He has given the states two weeks to respond.  After that, he said, he will file suit.

This latest step by the pro-union agency is both unsurprising and unsettling.  The state ballot measures were intended to head off the “card-check” provisions of the Employee Free Choice Act (EFCA).  Little wonder, then, that this Board, seemingly with the goal of achieving the unfulfilled “promise” of EFCA, should attack these initiatives head on.  Unions would have to earn representation by secret ballot.  Goodness! How could employees ever be expected to vote for a union after their employer weighed in on the issues?

So much for faith in democracy.

The Board views its mission as one to revive and expand unionism. From its members’ perspective (most of them, anyway) no straight-thinking employee ever could oppose unionization.  And so, it proposes to sweep away “obstacles” to representation that most citizens agree are necessary to assure employee free choice. 

The Board is mistaken.  Its proper role is to act as a referee, not a booster — to allow employees to choose union representation, or not to choose it, as they see fit, under conditions that foster free expression of an informed choice.  Allowing workers to cast a secret ballot in government-supervised election is the best way to do that.

Are we too harsh?  Double standards aren’t pretty.  When states limit union organizing the Board attacks them, but when a state restricts employers from communicating with employees about unions, the NLRB is missing, even though federal preemption concerns are at least as worrisome.   Consider a 2009 Oregon law.  It prohibits employers from taking action against employees who refuse to attend employer-called meetings on unionization or other issues, and even allows employees to get court injunctions against so-called “captive-audience” meetings.  The law plainly addressed a subject covered by the federal law.  The Chamber of Commerce and others brought suit challenging the law on grounds that it was preempted by the NLRA.  But the NLRB was not among them.  True, a federal judge turned back the challenge on grounds the suit was not yet ripe – no one had been forced to attend a meeting, he said. But Mr. Solomon doesn’t see that as a problem for the Board’s own planned lawsuits. “[W]here a danger exists that public knowledge of the provision may result in ‘self-censorship; a harm that can be realized without an actual prosecution,’” the Board can act, he says.  So why didn’t the Board show up in Oregon?  Because it wasn’t politically correct.  This Board’s constituents saw it as “union busting” instead of “union boosting.”  The Board has no qualms, however, over forcing states to spend sorely needed revenue on litigating secret ballot measures that vindicate employees’ rights.  This is unsettling, indeed.
If there is any comfort to be gleaned from this, perhaps it is the knowledge that time is short. By the end of 2011, the Chairman’s term on the Board will have expired.  So will that of one of her like-minded colleagues.  EFCA legislation is foreclosed for now by a Republican-controlled House of Representatives. 

The Board surely has one eye on the calendar.  If it is to move its pro-labor agenda, it must act quickly. The threat to state attorneys general is not the last of these actions.  Expect more. Very soon.