Right On: A misbegotten Obama rule rises from the ashes

Image courtesy of diane39 via iStock / Getty Images Plus, St. George News

OPINION — Like the mythical phoenix bird, a terrible ruling from Obama’s National Labor Relations Board has risen from its ashes, courtesy of what some call the “deep state.” Southern Utah employees and businesses could be affected.

Obama’s NLRB broke 30 years of precedent with a ruling that gave the faltering union movement new life and has class action lawyers licking their chops. Trump’s new NLRB appointees tried to overturn it but sadly were prevented from putting a wooden stake through the vampire’s heart.

With its expansive oversight of labor and unions, the NLRB was a perfect place to implement the regulator-in-chief’s idea of a worker’s paradise.

Recall that in one of a number of his unconstitutional acts, the so-called constitutional law professor tried to install NLRB appointees without Senate confirmation. Who’s the fascist?

Obama was slapped down 9-0 by the Supreme Court. Even the liberal justices couldn’t abide that abuse.

Obama eventually got new nominees confirmed and in 2015 they proceeded to rewrite longstanding business relationships between companies. In its Browning-Ferris ruling, the NLRB defined a new “indirect control” standard for management/employee relations. This new and controversial standard replaced the board’s long-held “joint-employment” standard.

If you work for a franchised restaurant like McDonald’s, Red Robin or Chili’s, who “controls” your work? If you work for a subcontractor on a construction site or you’re sent to a temporary job by a franchised staffing agency, who “controls” your work?

If you answered the on-site supervisor or foreman, try again. And don’t say the restaurant or staffing agency franchise owner or the construction subcontractor owner.

Obama’s NLRB said the folks back in home offices somewhere across the country have “indirect control” of your work and your working conditions.

Does that matter? Almost certainly not to you. But it makes a big difference to businesses that contract with temp-employment agencies, distant construction companies that employ local subcontractors and corporations that provide supplies and advertising for franchisees.

Obama’s goal was to drag big companies with deep pockets into labor disputes between union locals and local subcontractors and franchise owners. It provided an opening for unions to expand their power by combining contractor and subcontractor bargaining units.

This unprecedented ruling also set the stage for one of Democrats’ biggest and most consistent campaign donors: class action lawyers. Find some labor practice at a franchised restaurant that needs an expensive dose of social justice; troll for similar “victims” in the area or across the country and then file a class action lawsuit.

The problem may be caused by a local franchise owner and have nothing to do with corporate policy at the home office. But find a similar problem repeated at a few independent franchises and sue the franchising corporation. They’ve got the deep pockets, not the local business owner with a single location.

With some luck, the corporation will settle rather than fight to avoid the time, cost and adverse publicity spread by liberal media. That’s how the game is played in our litigious society.

Trump’s administration brought some common sense and balance back to the NLRB. His appointees were confirmed by the senate without Democratic filibuster, thanks to then-Sen. Harry Reid. The new board then reinstated the prior rule, the one that held sway for 30 years through both Democratic and Republican administrations.

Looking for an opening to reestablish labor and lawyer nirvana, unions howled and far-left Sens. Elizabeth Warren and Patty Murray applied pressure to the NLRB inspector general to find some conflict of interest in any one of Trump’s appointees.

Sure enough, the inspector general found an indirect connection between appointee Bill Emanuel and the Browning-Ferris NLRB case: his law firm, though not Emanuel personally, was involved in a similar case years before.

With Emanuel forced to recuse himself, the board deadlocked, allowing Obama’s activist rule to resume its place.

Exposing his partisan double standard, this same NLRB inspector general had identified no conflict-of-interest when he reviewed Obama NLRB appointee Craig Becker’s participation in cases that directly involved his former employer, the Service Employees International Union.

Those searching for nefarious deeds by the so-called “deep state” need look no further.

Stop and think about it. Almost everyone appointed to any federal position has experience relevant to that position. If any connection, no matter how remote or indirect, disqualifies a nominee, many serving today from both parties would be sent packing.

For example, Obama appointed Nancy Schiffer, associate general counsel at the AFL-CIO, to the board. Should she have recused herself from every case involving an AFL-CIO labor union?

The Browning-Ferris ruling was a gift to unions and class action lawyers that could be overcome with a new Trump NLRB appointee. But given Democrats’ history of reinterpreting all laws and ignoring precedents to implement their agenda, a new ruling might only survive until Bernie Sanders or another far-left Democrat is elected president.

The Republican Congress is taking up a measure to codify the common sense definition of joint employment. Until that happy day, feel free to find fault at your local Subway restaurant and engage your favorite labor lawyer to remedy it.

Howard Sierer is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: hsierer@stgeorgeutah.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2018, all rights reserved.

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2 Comments

  • NotSoFast June 21, 2018 at 5:12 pm

    Interesting. Same story, same special interest walking the halls giving out candy.

    • mesaman June 21, 2018 at 8:39 pm

      You mean Achmed was under the spell of the AFL-CIO and related socialist groups?

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