Posts Tagged ‘NLRB’
A misguided law enables the president’s union pandering
The National Labor Relations Board has become a partisan issue of late. After trying—and failing—to destroy secret-ballot union elections via “card check” legislation, President Obama turned away from the democratic process, and toward the NLRB, as a venue for advancing Big Labor’s interests.
To date, Obama has placed three people on the NLRB. During a congressional recess, he installed Craig Becker, who’d served as a top lawyer for two of the nation’s largest unions (the Service Employees International Union and the AFL-CIO), as a member of the board. He selected Mark G. Pearce—who had worked in “union side labor and employment law,” as his official NLRB bio puts it—as another. And Obama chose Lafe Solomon, a career NLRB lawyer, as the board’s general counsel.
Solomon promptly filed a complaint against Boeing, claiming the company had illegally discriminated against a unionized, strike-happy plant in Washington State when it chose to expand production in South Carolina, a right-to-work state, instead. And the board is trying to change the rules governing union elections so that companies have less time to mount anti-union campaigns.
These moves go beyond anything the NLRB has done in the past. But the current behavior of the National Labor Relations Board is only the outermost layer of the true problem: the National Labor Relations Act. In addition to creating a labor system that hurts non-union workers, forcing contracts upon unwilling participants, and engendering corruption, the 1935 legislation violates the Constitution, gives the NLRB the power to function as all three branches of government at once, and allows each president to stock the board with flagrantly biased nominees. President Obama may have abused the NLRA more than his predecessors did, but the NLRA is built for abuse. It should be repealed, or at least reformed.
The NLRA is also known as the Wagner Act, after Sen. Robert F. Wagner of New York, its sponsor. Before its enactment, private-sector employers had basically complete freedom in how they dealt with unionizing employees. They could, for example, simply fire workers who tried to unionize. Only 13 percent of the non-farm work force was unionized, but strikes were disruptive, and they were growing more frequent.
The stated justification for the NLRA was that strikes had enhindered the free flow of commerce, and that strengthening | unions and giving them a federally protected right to strike
would somehow fix that. In reality, of course. Congress supported the law as a way of tipping the power balance toward unions and away from management. The NLRA was just one of many New Deal laws that accomplished this.
Some of these laws addressed real problems—until the Norris-La^Guardia Act, for instance, courts often issued injunctions to end strikes, essentially forcing people to work. The NLRA, however, was a mistake from top to bottom.
As it was originally enacted, the NLRA defined several “unfair labor practices” for businesses, but none for unions. (In 1947, the Taft-Hartley Act added some for unions.) Short of closing a plant entirely, management could no longer discourage workers—using such tools as hiring, firing, discipline, and promotion—from participating in union activities. The only significant exception, confirmed in a 1938 Supreme Court case, was that an employer could hire replacement workers during a strike, and was under no obligation to fire the replacements to make room for returning strikers. The strikers were still considered company employees, however, and had to be reinstated when positions opened up.
Further, the act set up the system through which unions are recognized: First, they have to get 30 percent of workers in the “bargaining unit” (typically, the workers at a given plant) to sign cards. Then, the NLRB supervises a secret-ballot election, and if the union wins, it has the right to represent the workers. (Alternatively, the union can get signed cards from 50 percent of workers and avoid an election, but only if the company voluntarily recognizes the union.) The company is required to negotiate in good faith with its union on a contract; if negotiations falter, the union may strike.
The logic here is simple and straightforward: We want workers to be paid more and treated better: therefore, we’ll arm workers with the weapons they need lo gain concessions from employers. Unfortunately, it wasn’t until the 1950s that Milton Friedman proved the economic fallacy of this plan. Yes, unions often manage to get higher pay and better working conditions for their members. But in response, unionized businesses hire fewer workers. The workers who aren’t hired by union companies go to non-union companies—where their competition drives down wages—or remain unemployed. In other words, in the private sector at least, the gains of unionized workers aren’t gains for the working class as a whole; they’re gains by some workers at the expense of others. (In the public sector, which is not covered by the NLRA. higher wages simply come from taxpayers.)
And economics aside, the NLRA system involves a tremendous amount of coercion. Companies have to negotiate with unions with the threat of a federally protected strike in the background whenever their employees vote to make them. Businesses may not fire workers for union activities, including striking, regardless of what the relevant contracts say. And while (he current case against Boeing involves a fresh issue— whether companies may factor in local labor laws and past strikes when deciding where to build new capacity—the NLRA has long been interpreted to mean that a business may not shut down a unionized plant and reopen it somewhere else (a “runaway shop”) in response to strikes or union demands. If a union loses an election, the NLRB may decide the employer
engaged in “unfair labor practices” and force the company to bargain with the union anyway.
It’s not just employers over whom the law grants unions immense power. When a union wins an election, workers who voted against it are forced to accept the union as their “monopoly bargaining” agent, and are forbidden to negotiate their own contracts with the business. Depending on state law and the specific contract, anti-union workers may also have to join the union or pay dues. Right-to-work laws help in this regard, but they do not solve the problem of coercion—and the NLRA banned even these laws until the passage of the Taft-Hartley Act. In a right-to-work state, workers at union shops don’t have to pay dues or join the union, but they’re still bound by the union contract even if they do not wish to be. Seen differently, they get to free-ride on union negotiating efforts without paying their fair share.
Most of the NLRA’s effects were completely foreseeable. Union membership exploded- almost tripling in the ten years following its passage. And the law failed to accomplish its supposed goal of curtailing strikes: Work stoppages continued to rise through 1937, fell off as the economy improved, and then soared, reaching their all-time high in 1943.
What many did not foresee was the spread of corruption through organized labor. This is a complex story—read Robert Fitch’s Solidarity/or Sale for an excellent summary by a pro-union, leftist writer—but the bottom line is that it’s called “monopoly” bargaining for a reason. When a union doesn’t face competition and is entitled to dues from thousands of workers, it constitutes a massive opportunity for organized crime. To this day, if you read through the FBI indictments following a mob bust, you’ll find allegations of labor racketeering.
read more at national review
How the Boeing case poisons investment.
The Wall Street Journal august 13, 2011
The National Association of Manufacturers asked its members last month how the National Labor Relations Board’s decision against Boeing’s Sourth Carolina plant case is affecting their decision-making. Some 60% said the government’s case already has—or could—hurt hiring. Sixty-nine percent said the case would damage job growth. And 49% said capital expenditure plans “have been or may be impacted by the NLRB’s complaint.” Around 1,000 of the association’s 11,000 members contributed to the survey. That’s a lot of lost jobs.
Some might dismiss these results as self-interested, or predictable given the general business distaste for regulation. But that ignores the role that confidence plays in reviving the animal spirits essential for economic growth. When CEOs or entrepreneurs fear political intervention that might impose higher costs, they are more reluctant to invest or to hire new employees. That’s especially true when the economy is already growing slowly, or emerging from recession.
The NLRB’s assault on Boeing has been especially damaging because it violates what most Americans consider to be a core tenet of U.S. capitalism—the ability to move capital or business where you think it has the best chance of success. Boeing’s executives are being punished for remarks they made long ago about strikes at their Washington plants.
Boeing is challenging the NLRB’s complaint and may ultimately win in a federal court. But that could take months, and in the meantime executives across America are wondering what happens if the NLRB wins. Will their new plant in a “right to work” state be targeted next? Will their union drive a harder bargain knowing that the NLRB is ready to pounce on one unscripted CEO remark?
In a now-famous meeting last year with then White House budget direct Peter Orszag, CEOs from the Business Roundtable complained about the costs of regulation. Give me examples, Mr. Orszag said, and the BRT followed up with a 54-page list. A measure of the Administration’s responsiveness is that the NLRB launched its assault on Boeing after the BRT provided those examples, and President Obama has refused to say a word of reproach to the agency. This is how you get economic growth of 0.8%
A union election is a decisive event in an employee’s life, and new rules limit the information employees get before voting.
The Wall street Journal August 9, 2011
Government encroachments typically come as a wolf in sheep’s clothing, Justice Antonin Scalia once observed, but occasionally they are brazen—then, the “wolf comes as a wolf.” The Obama administration recently proposed a pair of rules to help unions win workplace elections. One rule is obviously a wolf. The other is a pretty creepy looking sheep.
The “wolf” is a proposal of the National Labor Relations Board (NLRB) to enable unions to force organizing elections with as little as 10 days’ notice. Critical issues governing the election—such as which employees may vote—would be determined in a hearing just a week after the union petitions for a vote.
The company, which often will not even know a labor lawyer, would also have one week to prepare a hearing statement addressing such arcana as “the Board’s jurisdiction to process the petition; the appropriateness of the petitioned-for unit; . . . [and] the existence of any bar to the election.” In the same week, the company would have to learn its rights and responsibilities under the labor laws, prepare for the hearing and launch its campaign for the upcoming election. Oh—it has a business to run too.
And the union? Its business is organizing. Often, paid organizers have been working behind the scenes for months, awaiting the opportune moment to spring their election demand.
The day before the NLRB proposed its election-blitz rule, the Department of Labor proposed a rule to further hobble companies’ response to union organizing. The department’s rule concerns the circumstances where employers, and firms they hire to “persuade” employees on union matters, must disclose that relationship in government filings. Congress created an exception to the disclosure requirement if outside firms “advise” the company, rather than “persuading” its workers. Labor’s proposal sharply limits that exception. Disclosure now would be required, for instance, when a lawyer suggests changes to material the company has written to distribute to employees.
Businesses always are reluctant to make governmental filings about the purpose and terms of their relationships. That’s particularly so when sensitive strategic and legal matters are involved—and when misfiling could result in criminal sanctions. And so, the Labor Department rule is dressed in the innocent garb of “disclosure.” But its intent is to pressure experts and companies to curb the services they offer and seek—in order to avoid federal filing obligations—just as the NLRB rule increases a company’s need for experts to quickly counter the unions’ inherent organizing expertise.
An irony to the NLRB’s move to expedite union elections is that these already are among the fastest legal proceedings known to man. In 2010, according to the NLRB’s acting general counsel, the median time to an organizing election after the union petitioned was 38 days, and “95.1% of all initial representation elections were conducted within 56 days.” By contrast, a federal court case—which often is less decisive to a company’s future than unionization—takes a median of seven and a half months, not counting appeal. A defendant has 21 days to file an answer, a deadline that’s commonly extended.
A union election is a decisive event in an employee’s life too—and the new rules would limit the information employees get before voting. While union organizers will have had months to bend workers’ ears (and arms), the company gets just a few days to prepare and communicate its message. That means employees have limited opportunity to get the company’s perspective on what a union means for its cost structure and competitiveness.
Both proposals are cut from the same cloth as the dubiously titled Employee Free Choice Act (EFCA) from two years ago, which effectively would have eliminated secret-ballot elections for unions. EFCA failed to pass Congress because it was not just manifestly unfair, it was undemocratic. The secret ballot is integral to an election worthy of the name. And so is a campaign in advance to educate voters. Are companies’ statements necessarily more truthful than unions’? No. But to quote Justice Brennan (who quoted Judge Learned Hand), through the First Amendment we have “staked . . . our all” upon the belief that “right conclusions are more likely to be gathered out of a multitude of tongues.”
President Obama—an avowed civil libertarian and former voting-rights professor—can’t be feeling proud about a pair of rules meant to change election outcomes by limiting speech and helping one side get a jump on the other. But unions are a financial bedrock of the Democratic Party. And private-sector unions are in sharp decline—6.9% of the work force, compared to nearly 21% in 1978. The president’s allies may figure that helping unions win their elections is essential if unions are to help the president win his.
The problem with that calculus is that the administration has spent much of the year attempting to show businesses that it’s their ally and a foe of unreasonable, onerous new regulations. That message is sharply undercut by a pair of proposed rules that overnight could subject thriving businesses to blitzkrieg union elections for which they have scant ability to prepare.
Mr. Scalia, an attorney, was solicitor of labor under President George W. Bush.
The Wall Street Journal JUNE 22, 2011
Labor Board Proposes Speeding Up Organizing Votes; Employers, GOP Cry Foul
By MELANIE TROTTMAN And KRIS MAHER
The National Labor Relations Board Tuesday proposed the most sweeping changes to the federal rules governing union organizing elections since 1947, giving a boost to unions that have long called for the agency to give employers less time to fight representation votes.
The NLRB’s proposals would likely compress the time between a formal call for a vote by workers on whether to join a union, and the election itself. It is the latest in a series of actions by the board and other agencies controlled by Obama administration appointees that respond to labor leaders’ calls for more union friendly federal labor policies.
The rules governing organizing are the focus of a power struggle between unions and employers after decades of declining union membership. Only 6.9% of private sector workers belonged to unions in 2010, and just 11.9% of all U.S. workers, according to the Labor Department. In 1983, unions represented 20.1% of all workers.
“This is another not so cleverly disguised effort to restrict the ability of employers to express their views during an election campaign,” said Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration and employee benefits.
Some companies say cutting the lead time before an election would make it harder for them to build a case for opposing a union, because union campaigns often begin months earlier without an employer’s knowledge.
Unions failed during the years when Democrats had control of Congress to win passage of a remake of union organizing rules known as the Employee Free Choice Act. Since Democrats lost control of the House in 2010, union leaders have stepped up pressure on the Obama administration to use its rule-making powers to achieve some of the same goals as the EFCA.
The NLRB said its proposed changes aim to curb unnecessary litigation; streamline procedures before and after elections; and enable the use of electronic communications, such as requiring employers to give union organizers access to electronic files containing workers’ addresses and email addresses when available.
Even with more favorable rules, unions could face challenges winning contested elections at a time when even union officials say many workers are more concerned about their own job security. Unions have tried and failed for years to organize workers at Wal-Mart Stores Inc., Target Corp. and the U.S. operations of big foreign-owned auto makers, among others.
The Union Agenda
Unions were counting on advancing their priorities after the election of President Obama. A scorecard on their progress:
Passage of Employee Free Choice Act to ease union organizing. Failed in Senate.
Getting former union lawyer Craig Becker on the NLRB. Accomplished through recess appointment.
Making it easier for airline and railroad workers to unionize. Approved by the National Mediation Board.
Enabling airport screeners to unionize and collectively bargain. Authorized by Transportation Security Administration.
“The team members rejected the union,” said Target spokeswoman Molly Snyder. “We are pleased that we are going to be able to work directly with our team members and continue to make Target as great a place as it can be.”
“Target believes that we have followed all of the laws and regulations of the National Labor Relations Act,” Ms. Snyder added. She said the company “doesn’t have anything to share at this point” about the changes proposed by the NLRB.
The International Association of Machinists and the Association of Flight Attendants lost elections last year involving 50,000 Delta Air Lines Inc. workers. Since then, the National Mediation Board, which oversees elections in the airline industry, opened investigations into allegations that the company unfairly pressured workers to vote against the unions. The NLRB rule changes wouldn’t affect the airline industry, whose labor relations are governed by the mediation board.
Brett McMahon, vice president for business development at Miller & Long, a privately held, nonunionized construction company in Bethesda, Md., said the NLRB’s proposal “provides a totally unfair advantage to labor and it deprives employees of a full set of information.” Mr. McMahon, whose company employs about 1,100 people, said the NLRB proposal, combined with a Labor Department proposal Monday to require employers to disclose more information about labor consultants they hire, is “a two-fold attack” on employers.
Republican lawmakers were already attacking the NLRB for its decision in April to accuse aircraft giant Boeing Co. of illegally building a 787 Dreamliner production line at a new nonunion plant in South Carolina, a state where unions are weak, instead of in Washington state where union employees are already building such planes.
Unions reacted positively to the NLRB’s proposal. “At a time when corporations have lawyers and lobbyists speaking for them on Capitol Hill, it’s a good thing when a federal agency wants to allow working people to have a say,” said Mary Kay Henry, president of the Service Employees International Union.
The NLRB’s Democratic majority has the votes to adopt the rules. Ms. Liebman said the board would approach the process with “open minds” and has invited public comment. There will be a public meeting on July 18th and 19th about the proposal.
Union organizing efforts often take years. In 2008, the UFCW won an election to organize 5,000 workers at a Smithfield Foods Inc.’s hog-slaughtering plant in Tar Heel, N.C., after a campaign that consumed 15 years. The union lost a 1997 vote, spurring seven years of litigation. In 2006, the U.S. Court of Appeals for the District of Columbia ruled that the company had threatened workers and ordered it to reinstate four union supporters the court found were illegally fired.
The cost of organizing efforts has led unions to seek fewer votes. Last year, unions won 1,036, or 66%, of 1,571 elections conducted by the NLRB, according to the agency. In 1990, unions called for 3,536 elections and won 1,773, or 50%.
The power struggle between employers and unions promises to be a factor in the 2012 elections. Unions were significant contributors to President Barack Obama’s 2008 election campaign and played a crucial role in drumming up votes for him and congressional Democrats.
In the 2010 election cycle, labor unions overall contributed $73.4 million to federal candidates, parties and outside groups, down from $74.55 million in the 2008 cycle, according to the Center for Responsive Politics’ calculations of the 20 biggest union contributors at the time. In both cycles, at least 90% of the unions’ party-related contributions were to Democrats. Unions also spend money on political efforts not directly tied to a candidate.
Unions are heading into the 2012 election cycle facing moves in several states to curtail collective-bargaining rights. Labor leaders have turned to the Obama administration for help, and warned that union members would withhold campaign contributions for Democrats who don’t support the union cause.
Big Labor must be counting its blessing to have an administration in place willing to ignore the will of citizens and job creators. In last year’s midterm election, voters sent a powerful message to the executive and legislative branches of government: less government intervention and no paybacks. Despite this, the Obama Administration continues to signal their willingness to reward their Big Labor allies through a series of appointments, regulatory favors, and other paybacks.
Big Labor remains intent on empowering government bureaucrats that will force unionization on employers and employees alike. Their agenda of eliminating the secret ballot and mandating contracts on workers could not and would not pass the legislature. As the Workforce Fairness Institute gears up for the New Year, we must remain vigilant and ready to take action against threats from Big Labor that could undermine small businesses wherever they may arise.
And to make that point, just last week the National Labor Relations Board (NLRB) threatened to sue four states for approving amendments to their constitutions guaranteeing the right to a secret ballot in union elections.
Big Labor’s 2011 Wish List is long, but the small-business community is strong. Together, we can work to preserve American jobs, support small businesses, and beat back Big Labor.
Big Labor’s 2011 Wish List:
#1 – More “Payback” From The Obama Administration.
#2 – Fewer Rights For Workers & Small Businesses.
#3 – NLRB Supported Electronic Voting Allowing Workers To Be Intimidated & Coerced.
#4 – NLRB Supported Reversal Of 45-Day Window For Election Request.
#5 – Kicking Out Girl Scouts & Salvation Army In Front Of Stores If Union Bosses Can’t Access Shoppers & Employees.
#6 – Eliminating Employees’ Rights To Hear Their Employer’s Perspective On Union Organizing.
#7 – Take More Dues From Members’ Paychecks To Use On 2012 Political Campaigns.
#8 – Force More Companies Into Bankruptcy By Making Demands That They Can’t Meet.
#9 – Seek More Bailouts At The Expense Of Taxpayers.
#10 – Insert More Cronies Into Administrative Agencies To Do Their Bidding.
Big Labor’s latest scheme may surprise you, too. The most recent targets in the push by union bosses to force unionization on employees and employers are groups like the Girl Scouts, American Red Cross and Salvation Army. Recently, the National Labor Relations Board (NLRB) determined that companies must place notices in workplaces to inform employees about their right to form a collective bargaining unit.