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If You Thought Activist Judges Were a Problem…

With a looming nomination to the Supreme Court dominating the headlines, much has been written about the dangers of activist judges – those jurists who do not feel bound by a strict reading of the Constitution, but instead are compelled to reshape the letter of the law to fit their desired outcomes.

It turns out activist judges are not the only breed of unelected arbiters attempting to impose their vision of the law from outside the legislative branch. Elsewhere in the federal government lurk various boards and governing bodies that, when commandeered by ideologues, could wreak havoc on the law and long-standing policy.

Consider the National Labor Relations Board, an independent federal agency created by Congress to administer the law that governs relations between unions and employers. The NLRB’s website describes the five-member governing board as a quasi-judicial body that decides labor issues. In other words, the Board is intended to act as an impartial arbiter of labor law, resolving disputes within the confines of the laws passed by Congress.

Enter Craig Becker. A former associate general counsel for the Service Employees International Union, Becker’s paper trail includes a series of writings outlining his views that employers should have virtually no rights in their own workplaces, and his belief that the Board can be used as a tool to undo decades of workplace election policy.

Becker has been unambiguous about his belief that the rights of employers should be drastically limited under labor relations law, arguing in a 1993 Minnesota Law Review article that, “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” He is a supporter of the anti-worker “card check” method of union organizing, which strips workers of the right to privacy at the ballot box, and he has written that changes to certain organizing rules “could be achieved with almost no alteration to the statutory framework.”

Not surprisingly, Becker’s radical views came under fire when he was nominated by President Obama to serve on the Board. Senators on both sides of the aisle sounded the alarm about his activist tendencies, expressing concern about whether Becker would adhere to congressional intent and the strict requirements of the law in resolving workplace disputes.

Becker’s nomination met bipartisan opposition in the Senate and fell far short of the votes needed to advance. Unwilling to allow the Senate to further vet the nominee and resolve questions about his fitness for the job, President Obama instead used a recess appointment to install Becker on the Board in late March.

Becker’s nomination was part of a package of appointments to fill three vacancies on the panel. Neither of the other two nominees in the slate – one Republican and one Democrat – provoked the controversy nor the opposition surrounding Becker.

When the President made his recess appointment, the other Democratic nominee, Mark Pearce, joined Becker in bypassing Senate confirmation. Yet inexplicably, the noncontroversial Republican nominee, Brian Hayes, was left in limbo by President Obama.

At the time he made the recess appointments, the president said “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.” Sadly, this lofty rhetoric does not match the reality of forcing two Democrats on the board over Senate objections while leaving behind the single Republican nominee.

Union leaders have made their intentions for the Board crystal clear. They view a friendly Board as their back door path to changing workplace organizing law. And the friendlier the Board, the better.

In her faltering bid to replace Andy Stern at the helm of the SEIU, current Secretary-Treasurer Anna Burger described her plan to “push the labor-friendly majority on the NLRB to level the playing field and make it easier to organize through regulation.”

“It we aren’t able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action…” wrote Stewart Acuff of the Utility Workers Union of America in a piece published by the Huffington Post.

The special interests have set their sights on this obscure labor relations governing board as their tool for growing their ranks, coming down hard on job creators, and enacting policies unable to garner support in Congress. It’s easy to get caught up in the debate about judicial appointees who might reshape our laws from the bench, but we must not ignore the threat posed by other unelected activists.

Congressman John Kline represents Minnesota’s second congressional district and is the top Republican on the House Education and Labor Committee. For more information about the work of Republicans at the Education and Labor Committee, please visit their website, Facebook, and Twitter pages.

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