First the latest moves from the pro-union contingent of the nation’s lawmakers. New York handed union organizers in their state a new billy club with a new “Wage Theft Prevention Act,” which imposes stringent notice requirements and enhances penalties for violations of the wage-hour laws. At the federal level, the NLRB just got extremely creative by deciding that an employer violated Section 8(a)(1) of the Act for terminating an employee before she engaged in protected “concerted activity.” The usual NLRB dissenter, Brian Hayes, said of the Paraxel Industries, LLC, 356 NLRB No. 82 decision,
“I note that finding a Sec. 8(a)(1) motivational discharge violation in the absence of any actual concerted activity is unprecedented, and, at the very least, in tension with Meyers Industries, supra. I have serious reservations about this finding and the potential breadth of its application in future cases.”
The Obama administration also got creative, using a new EPA standard to force independent truckers into the Teamsters union. The new “green” emissions standards will be required to enter some of the country’s busiest ports, which many independent truckers rely on for a large share of their business. The teamsters HATE independent truckers because they can’t unionize contractors, so the regulations force the owner/drivers into a company in order to comply. Obama chimed in by resubmitting the appointment of Craig Becker to the NLRB for a full 5-year term that would end in December of 2014. He couldn’t get his original appointment through Congress and had to resort to a recess appointment. With the newly remodeled Congress, this one is not likely to go much further. If not confirmed, his current term will expire in December of this year. Senators Mike Enzi (R-WY) and Orrin Hatch (R-UT) sent a letter to the President asking him to rescind the nomination, stating:
“We were disappointed that you chose to put Mr. Becker on the Board by recess appointment even after the Senate voted against advancing his nomination… After examination of his writings and a hearing before the Senate Health, Education, Labor and Pensions Committee, the Senate opposed his confirmation because of his record of supporting an expanded role for the NLRB beyond current law without Congressional authorization and his multiple conflicts-of-interest.”
On the pro-business side, the four states threatened by the NLRB to sue to declare their recently passed secret ballot protection laws unconstitutional, shook their fists and said, “Go ahead, make my day!” A letter signed by the four state Attorneys General said in part, “If you choose to proceed with the lawsuits described in your January 13 letters, we will, of course, vigorously defend our laws,” and
“We reject your demand to ‘stipulate to the unconstitutionality’ of these amendments. These state laws protect long existing federal rights, and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.”
Senator Jim DeMint (R – SC) got into the act by reintroducing the Secret Ballot Protection Act, referencing the NLRB/States ruckus in a press release. It is highly unlikely the bill will go any farther than it has in the past, as it would take 13 Democrats to break ranks to get past cloture in the Senate. Finally, in an ironic decision out of the usually labor-friendly state of California, an appellate court reversed a lower court’s ruling and declared two state statutes protecting labor handbilling and picketing on private property to be unconstitutional when similar protections are not allowed for other speech. The court declared that “the impact of the statutes is to discriminate,” and that “the statutes select which views the state is willing to have discussed and debated.”
