It Lives! Paycheck Fairness Act Goes to Senate HELP Committee

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Category : Federal Labor Law

One of the promises Barack Obama made in his State of the Union address was to "crack down on violations of equal pay laws," and the House has rushed to fulfill his vision by passing the Paycheck Fairness Act.

The bill will have a hearing before the Senate's Health, Education, Labor and Pensions (HELP) Committee tomorrow (March 11, 2010).

The Paycheck Fairness Act will make it harder for employers to defend themselves against charges of gender bias by shifting the burden of disproving the allegations to the defendants rather than requiring plaintiffs to prove discrimination. It will also uncap punitive damages, so someone could be rewarded $22,000 in back wages–and $17.5 million in punitive damages! A stretch, but anything is possible if there's a jury (or wacko judge) involved.

Once this and Obamacare become the law of the land (cross your fingers that they don't), what's next?

The Employee Forced Free Choice Act (EFCA), no less.

Egads!

Union Members Don’t Share or Support Union Goals, Candidates

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Category : Random Musings

A Hart Research Associates poll, conducted for the AFL-CIO, found that 49 percent of union members in Massachusetts voted this past Tuesday for Republican Scott Brown. Union-backed Democrat Martha Coakley garnered 46 percent of the union vote.

AFL-CIO spokespersons quickly attributed the result to weakness in the Democratic candidate, not to any referendum on Obama or the Democratic agenda in Washington, D.C.

Uh, huh….

Further polling of union members, this time regarding the Employee Free Choice Act (EFCA), showed a similar disconnect between union leaders and union members.

This month new polling showed that 66 percent of union households oppose changing the bargaining process in unionization, which EFCA would do; 51 percent of union households oppose changing the way unions are formed, which EFCA would do; and 77 percent of all voters, as well as 77 percent of union households oppose a government arbitrator having the final say in determining contract terms, which EFCA would do.

Still, union leaders are predicting passage of the EFCA sometime this year, loss of the Democratic super-majority in the Senate not withstanding.

Uh, huh….

Why No Recess Appointment for Craig Becker? (Knock on Wood!)

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Category : Federal Labor Law

Dubya had no problem using recess appointments to put people into positions of power whom the Democrats, post-2006, would never approve.

Barack Obama faces a similar challenge with his nomination of Craig Becker to the National Labor Relations Board (NLRB). He could've made a recess appointment this month after the Senate returned Becker's nomination to him. Instead, it is rumored that he will reappoint his man in hopes that he can get a full appointment. Obama must know, deep down, that both the House and the Senate will no longer be Bush-whacked after the 2010 elections (see Massachusetts, Tuesday's election results) and figures this is his only chance to get a full appointment.

If he does get a full appointment, Becker and his cronies on the Democratic side (the NLRB is normally split 3-2 in favor of the ruling party) can outdo the Employee Free Choice Act (EFCA) via bureaucratic fiat–with nary a vote by any elected representative. It would then take a lengthy trail of court challenges, ultimately leading to the Supreme Court, to undo the NLRB ukazes. By then, the Dems will no doubt have long faded into the haze of their own excesses and the Repubs will be back in power. In the meantime, all hell could/would break loose on the labor front, with (among other NLRB-issued decrees):

  • The time-frame for union elections drastically reduced to a week or 10 days;
  • The silencing of employers during the unionization process;
  • Increased (and onerous) fines for interfering in the organization process;
  • A mandate to provide organizers with names, addresses and phone numbers of all employees and free access to company facilities to speak to employees about unionization:
  • Or, the final trump card–organization by card check with signatures certified by a "neutral" third-party examiner.

EFCA, who needs it when you have Craig Becker and company?

SEIU Talking Points Call Secret Ballots ‘Company-Dominated’

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Category : Random Musings

The Service Employees International Union (SEIU), whose evil president, Andy Stern, has visited the White House more than any other person not working there, recently issued a set of talking points (picture below) to use in the battle to pass the Employee Free Choice Act (EFCA).

Notice how the points reject the use of "card check" entirely and substitute it with "majority sign-up," and then rather than refer to secret ballots at all, they use the phrase "company-dominated system."

George Orwell's DoubleSpeak is alive and well in the White House and its union cronies.

SEIU talking points about the Employee Free Choice Act

Should/Will Organizers Be Allowed on Work Site Property to Unionize?

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Category : Federal Labor Law

One of the alternatives to card-check organization in the Employee Free Choice Act (EFCA) is to allow for quicker secret-ballot elections and permit union organizers to meet with employees on the work site being unionized.

Elections are currently scheduled at about the 39-day point after the National Labor Relations Board (NLRB) receives organizing cards signed by 30 percent of a site’s employees. During that period, employers can hold on-site meetings to present their case against unionization, but organizers are not permitted the same access.

EFCA to the rescue. Even without a rewrite to drop card check, most current versions of the EFCA provide for workplace access by organizers. The Supreme Court has ruled in the past, however, that the National Labor Relations Act (NLRA), the 1935 law governing unionization, does not permit violations of private property–in this case, the workplace. The NLRA merely prohibits employers from interfering with organization activities. It does not require employers to aid and abet the union’s efforts.

In Lechmere Inc. v. National Labor Relations Board, the Supreme Court in 1992 clarified the sanctity of private property in organization efforts.

Lechmere owned a retail operation in a mall and held an ownership stake in the mall’s parking lot. When union organizers took to placing union pamphlets on employee cars in the parking lot, Lechmere ordered them off its private property, and the police obliged by enforcing the order. The retail workers’ union took the issue to the NLRB, which ruled that Lechmere was engaging in an "unfair labor practice" under Section 8 of the NLRA.

Not so, the 6-3 decision of the Supreme Court said, reversing the NLRB. The majority opinion said that granting third parties access to private property for their own purposes would be a dangerous precedent. Employers, it further said, are not required to facilitate unionizing efforts, just not to obstruct such efforts. Further, in cases where employees are otherwise "inaccessible" except on company property, the court said access legislation could be passed on those grounds.

The EFCA, obviously, goes well beyond the "inaccessible" standard set by the Supreme Court and envisions blanket on-site privileges to organizers in all cases.

The question is whether today’s Supreme Court would uphold Lechmere and strike down this portion of the EFCA if it should pass and become law.

The answer is "probably," but it would take years for challenges to wend their way through lower courts, and by then perhaps the conservative, pro-business majority on the Supreme Court might no longer exist.

Might, but one must remember that the conservative majority, craftily reaffirmed by Dubya with relative youngsters John Roberts and Samuel Alito, still has a long-distance hold on the court…providing the unusual and unforeseen doesn’t occur (such as early retirement or death).

So, employers, get ready to throw open your companies’ doors as the EFCA takes you on Mr. Toad’s Wild Ride into unionization.

 

Living Long Enough to Agree With George McGovern

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Category : Federal Labor Law, Personnel Concepts

I was one of the many millions who gave Richard Nixon the largest electoral landslide in history in 1972 largely because of his opponent, George McGovern, who seemed at the time the farthest left of the far left, totally pinko capable if not outright functioning.

After the Senate, however, McGovern ventured into the real world and became a businessman who operated a hotel. He learned his lessons.

In 2008, McGovern came out as completely against the Employee Free Choice Act (EFCA), the much-written-about proposal to unionize companies through employees’ signing cards.

Today in the Wall Street Journal, he repeated his opposition and gave additional reasons, including the mandatory contract arbitration part, which he said would be “an abrogation of freedom,” using the words of AFL-CIO icon George Meany of all unlikely people.

However much I agree with McGovern on EPCA, I still part company with him on his appraisal of Barack Obama as an “exceptional president” (I agree if by that one means “out of line”) and with his view that the Democratic Congressional majorities are “well deserved.”

Still, I never thought I’d give McGovern any business-sense credit, but there you go–put your own money, and not the government’s, on the line, and you make these common-sense evaluations and decisions. Are you listening, Barack Obama?

Despite Public Bravado, Labor Sees EFCA on Life Support

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Category : Random Musings

Pennsylvania Senator Arlen Specter, who in 2007 voted to invoke cloture on the Employee Free Choice Act (EFCA), came out yesterday and said his vote will be “no” this time around.  That leaves the Democrats–Labor’s mouthpiece and sometime lackey–with 58 (59 if and when Al Franken arrives) votes to end a sure Republican filibuster. Unfortunately, 60 votes are required.

There’s another way to get it passed through the Senate through a process called reconciliation, which is generally reserved for budget matters. Reconciliation chokes off the filibuster option.

However, using that for such a controversial piece of legislation would be the equivalent of nuclear war–it could be enough to cost the Democrats dearly in the next election.

This leaves the Costco-Starbuck’s-Whole Foods compromise looking more and more like what will finally emerge–so long as sane minds prevail and the House and Senate act (for once) like adults.

Business Group Offers Alternative to Employee Free Choice Act

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Category : Federal Labor Law, Random Musings

Starbuck’s, Whole Foods and Costco have floated a proposal to level the playing field, as they term it, in union organizing. The group rejects two prongs of the proposed Employee Free Choice Act (EFCA)–the card-check and binding arbitration provisions–and keeps in place the current system of secret balloting.

What they do retain from the EFCA is the provision for increased penalties on employers who obstruct the unionization process or who otherwise threaten, intimidate or outright terminate activist employees.

What they offer in place of card check and arbitration are an expedited election process and equal access for the union to employee gatherings held pre-election for informational purposes, meetings which unions claim are currently used by employers to spread disinformation and scare employees into voting no.

The proposal was instantly rejected by Congressional sponsors of the EFCA as “written by CEOs, for CEOs.” An AFL-CIO spokesperson said it was “simply not an alternative.”

The three companies found little comfort in the business world either, where a line of no compromise has been drawn in the sand.

It appears that friends and foes of the EFCA alike have adopted an all-or-nothing appoach. Time will tell if one side or the other eventually blinks–or if both do.

(For the record, Costco is the only one of the three companies to be unionized, and it is just partially unionized through a handful of  locations that were organized by the Teamsters when they were Price Clubs. Costco does, however, give all its employers the same wages and benefits that it negotiates with the Teamsters every three years. Whole Foods actually has one unionized location in Madison, Wisconsin, out of 300 or so total outlets. The company’s co-founder, John Mackey, has routinely blasted the “intellectually bankrupt left” on his blog and derided unions as “like having herpes.” In fact, Mackey discovered an online community on Yahoo devoted to Whole Foods and contributed nearly 1400 comments over seven years using the pseudonym rahodeb, a variation on the name of his wife Deborah. This activity of his came into play when Whole Foods made an offer to purchase Wild Oats, and the SEC discovered that Mackey had used the online communities for Whole Foods and Wild Oats to game the deal. Whole Foods, to its credit, does provide all employees with free health insurance and competitive wages, factors which have helped stave off unionization at all locations save that one. Starbucks has been in and out of hearings and courtrooms in the past for alleged union-busting activities, and late last year was found guilty by a National Labor Relations Board judge and ordered to reinstate three employees with back pay. There is a Starbucks Union Web site, but its account has been suspended, which hosting services will do for unpaid bills, overuse of bandwidth, violations of terms of service, and other reasons. Even if I had the time, I doubt I’d be motivated to find out why the union’s site has been suspended–unless I can discover some kind of scandal hidden therein.)

That ‘Human Molestor’ Rick Berman Is At It Again

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Category : Random Musings

The man whose very son called him “despicable” and a “human molestor,” labor antagonist Rick Berman, is spreading the word again–the word against the EFCA, Employee Free Choice Act.

At least he’s come up with interesting anti-EFCA studies, though one can never know the extent of the bias (if any) built  into these things.

First, he cites Princeton economist David Lee, who studied the effect of unionization on companies’ stock valuations.

According to Berman, Lee found “substantial losses in market value following a union election victory–about a 10 percent decline, equivalent to about $40,500 per unionized worker.”

Should EFCA pass, the Human Molestor concludes, “Lee’s data suggest that the market value of firms will decline by as much as 11 percent.” The U.S. Chamber of Commerce, which he also cites, chimes in that EFCA will cost the nation 600,000 jobs in the first year.

Here’s more labor molestation:

In a 2002 study, economists Richard Vedder and Lowell Gallaway calculated the burden that labor unions had on American economic productivity. They found that between 1947 and 2000, ‘the economic cost of unions’ in cumulating lost income, investment, and output was $73 trillion. That’s more than the gross world product last year.

Dunno, but that sounds awfully inflated or made up to me, and I’m no fan of the EFCA.

Berman gets in some licks of his own, of course, but he doesn’t reveal his source when he claims that the top ten most unionized states achieved just two-thirds the job growth of the top ten least unionized states from 1997-2007.

This is all good stuff in the arsenal of weapons to be used against the EFCA, but I doubt any Democrats will be listening in Congress.

Are you listening, filibuster-killer Arlen Specter?

EFCA Could End Up Unionizing 4,180,000 Small Businesses

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Category : Random Musings

The 1935 National Labor Relations Act (NLRA), commonly referred to as the Wagner Act, exempted small businesses from union organization, but the definition of small business has not been updated since 1959. The exemption ends when a small, non-retail business grosses $50,000 in a single year; for retail operations, the figure is $500,000 a year.

However, the Employee Free Choice Act (EFCA) now before Congress contains no exemption, nor any updating of the NLRA exemption. Thus…

Using census data, the Heritage Foundation (admittedly a pro-business, pro-capitalist outfit) estimates that 4,180,000 U.S. small businesses employing 38,934,000 Americans could end up being unionized.

The Foundation poses this scenario: Say you own an automobile repair shop employing five people. A union guy comes by at the close of work one day and corrals three of them into a local pub, where they all sign cards authorizing a union. Now, using a typical tactic, the union rep might call these cards “requests for information” or some such, but anyway, the shop is thereby unionized.

You, the owner, now have 10 days to begin negotiating with union guy, who now represents all your employees. He makes deliberately ridiculous demands for wages, benefits and working conditions, demands to which you could never accede and stay in business, so you refuse. In 90 days, rep guy calls in a federal mediator, but his demands stay the same. After 30 days, the mediator calls in an arbitrator, who then dictates a two-year contract that splits the difference between what you proposed and what union blackmailer wanted.

Result: Your costs go up by 50 percent, and you go out of business. You go back home and start working out of your garage, making as much or more than you did owning a business. Meanwhile, five people are out of work, but union guy has moved down the street to organize other small businesses.

Read the full scenario and explanation.