Where Unions Are, Americans Aren't

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WASHINGTON--The American people have been voting with their feet, the Census Bureau announced on Tuesday, leaving states with heavy union influence and choosing to live in "right-to-work" states with higher job growth where they cannot be forced to join a union as a condition of employment.

But the National Labor Relations Board, now dominated by Obama appointees, is deaf to the preferences of voting Americans. It wants to do everything in its administrative power to tilt the playing field towards unionization-even if it means higher unemployment and lost jobs.

As a result of geographic shifts in population uncovered by the 2010 Census, nine congressional seats will move to right-to-work states from forced unionization states. Some winners are Texas, Florida, Arizona, Georgia, and South Carolina, while losers include New York, Ohio, Michigan, Illinois, and New Jersey. Over the past 25 years job growth in right-to-work states has been over twice as high as in unionized states.

Of course, Americans voted at the polls, too, electing a substantial majority of Republicans to the House of Representatives in the 112th Congress. One result: Americans will be safe in 2011-12 from enactment of the Employee Free Choice Act, a union-supported bill that would take away workers' rights to a secret ballot in union elections and impose mandatory contracts between newly-unionized firms and workers.

One reason that the Senate didn't pass the misnamed Employee Free Choice Act-the bill passed the House in 2009-is the record high national level of unemployment, which has exceeded 9% for the past 19 months.

In a news conference on Wednesday, President Obama said that "we now have to pivot and focus on jobs and growth." Increased unionization raises wages and costs jobs.

Congress established the National Labor Relations Board in 1935 to administer the National Labor Relations Act, the law that gives workers rights to organize and that governs relations between unions, employees, and employers. The Board has jurisdiction over all private-sector workers except those employed in railroads, airlines, or agriculture. It investigates allegations of unfair labor practices by unions and employers and oversees elections for union representation.

Congress has been pressed by organized labor for many years to give unions greater leverage for gaining new members, and it has declined to take action. Instead of waiting for legal authority from Congress, Lafe Solomon, a career Board lawyer, now the Board's acting general counsel, has used his agency's power to help unions.

The Board's general counsel is a Senate-confirmed position, but Mr. Obama has yet to nominate anyone. The position has substantial policy authority and Congress believes the general counsel should be confirmed before exercising that discretion.

The Obama administration and Mr. Solomon have different views. Mr. Solomon, without benefit of presidential nomination, much less Senate confirmation, has raced into adventurous new policies where previous Senate-confirmed general counsels have not dared to tread.

On Wednesday the Board issued a notice of proposed rulemaking to require employers to display posters to notify workers of their rights to join a union. Public comments on the rule are due in two months. At present, this poster has to be displayed prominently in the workplaces of federal contractors, along with posters publicizing minimum wage and safety requirements. Under the proposed rule, it would be displayed in all workplaces under the Board's jurisdiction.

The new poster is yet another burdensome government mandate on employers. The Board has gone for 75 years without requiring such a poster. The requirement sweeps in millions of employers whose workplaces are not relevant to unionization. All these posters have to be placed on bulletin boards somewhere and supervised by human resources personnel.

Requiring these posters will do little to benefit the 15 million unemployed Americans, but it is yet another unsubtle message to employers that the administration regards them with hostility and suspicion. China, India, and almost every other country do not require these posters and welcome American businesses to hire their workers.

And on Monday Mr. Solomon came out with a new set of extraordinary remedies to punish those employers found to have violated the law in the context of a union organizing drive, with no history of prior violations needed.

Mr. Solomon wants to require management to read aloud to the workforce the workers' rights to join a union, taking valuable work time. He wants unions to have access to firms' bulletin boards so they can post materials advertising the advantages of joining a union.

When employers use electronic communication, such as email, intranet postings, and newsletters, Mr. Solomon wants unions to be able to use these media to communicate with workers. This means that firms might have to post advocacy articles by unions in their newsletters, potentially violating freedom of speech.

Mr. Solomon wants employers of nonunion shops to give unions lists of workers' names and addresses, to facilitate organizing. What if some workers do not want their personal information turned over to union bosses, fearing intimidation or identity theft?

Ronald Meisburg, a former Board general counsel from 2005 to 2010 appointed by President George W. Bush, and now a partner with Proskauer Rose LLP, told me, "This latest initiative is a major departure from the Board's earlier efforts to increase remedies, because it is aimed at facilitating union organizing and the creation of the legal obligation to bargain in the first place."

Americans are voting at the polls and with their feet for job growth and a free workplace, but the National Labor Relations Board isn't listening. The 112th Congress should take note.

Diana Furchtgott-Roth, former chief economist at the U.S. Department of Labor, is senior fellow and director of Economics21 at the Manhattan Institute. Follow her on Twitter: @FurchtgottRoth.   

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