At this point, it should come as little surprise that the Obama Administration’s fleet of bureaucrats would prefer Big Labor’s political machinations to any hint of common-sense.
Sadly, predictability doesn’t lessen the blow when bad policies hurt American employees and employers alike. Card check or the Employee ‘Forced’ Choice Act (EFCA) has been temporarily side lined, but some on Capitol Hill seem intent on pressing forward and supporting the disastrous initiative.
It should seem hard to believe that the elimination of the secret ballot for votes determining whether a collective bargaining unit has been formed would even be taken seriously in the first place. Choosing to unionize is a critical decision that poses lasting consequences for workers and small businesses. Allowing union leaders to advance a political agenda eviscerating this process is a kick to the gut to fairness. Intimidation and coercion are norms for Big Labor, so why give them the opportunity to do it legally in our workplaces? A public card signing is hardly the same as a private vote and most Americans know this. According to U.S. Chamber of Commerce data, 70 percent of surveyed voters “agree that a private election is better than card check.”
Not only would the Employee ‘Forced’ Choice Act strip away privacy, but it would put even more power in the hands of bureaucrats, while punishing job creators. The deeply flawed law would empower government bureaucrats to mandate contract terms on employees and employers alike. This would allow Uncle Sam to side with Jimmy Hoffa over local employers. Our economy is in the midst of an endlessly sluggish recovery, and President Obama’s idea of helping businesses is more regulations, bureaucratic control and higher costs?
Some might wonder why and the answer is simple: follow the money. Does it really come as such a shock that these politicians are placing Big Labor’s agenda over American jobs?
In July, a Wall Street Journal story detailed the depth of union bosses’ spending on politics totaling $1.1 billion from 2005-2011. Not to mention the additional $3.3 billion spent over the same amount of time on ‘”political activities” in general. While labor bosses spend billions leveraging the dues paid by workers, union retirees suffer serious cutbacks to pension and retirement programs.
The card check bill was brought forward in 2009, much to the chagrin of workers and small businesses alike. History shows some lawmakers pushing forward with EFCA have placed the priorities of Big Labor over those of American workers.
In fact, union bosses are demanding payback in the form of EFCA. Not too long ago, “Teamsters President Jim Hoffa said in an interview that Obama would try to push through union-friendly measures like the Employee Free Choice Act in a second term. ‘We’ve got to motivate people to get out and vote. That’s what this is all about,’” Hoffa told Michigan delegates.
Big Labor is working frantically to buy support for its agenda. In fact, they have already shelled out close to $80 million in political donations. In the face of a massive membership decline, it’s expected union bosses will continue their effort to leverage donations made to politicians in an effort to forcibly unionize workers.
Simply put, the Employee ‘Forced’ Choice Act is a policy that would advance the agenda of Big Labor bosses at the expense of already struggling small businesses and middle-class workers. Economic studies demonstrate that this ill-conceived legislation would result in the loss of 600,000 jobs in one year alone.
Though already defeated in previous Congressional sessions, some lawmakers are working to revive the law and using a taxpayer-funded pulpit as a platform. Their actions will continue to fall flat whether in this Congress or the next because the American people do not support forced unionization and will hold to account individuals who choose to advance the job-killing policy.
Recently, Big Labor bosses converged on Philadelphia to issue their latest demands of Washington, DC. The event, labeled “Workers Stand for America Rally,” purported to offer a positive vision of the future. But the so-called “Second Bill of Rights” proposed by union bosses represents the same old job-killing policies Big Labor has pushed for years.
Rather than emitting the air of a confident movement promoting a progressive agenda, the so-called “Second Bill of Rights” has more of the feel of petulant demands from a desperate and dwindling special interest lobby that has alienated elected officials in Washington with its unreasonable demands and can only resort to bullying the rest.
Big Labor feels its grasp on power brokers in the nation’s capital slipping. With dwindling labor participation and diminished influence among the American electorate, union bosses are making a push to secure more power before it is too late.
And Big Labor’s newest push consists leveraging bureaucratic connections at relatively obscure government agencies that nevertheless wield considerable power, such as the National Labor Relations Board (NLRB) and the National Mediation Board (NMB).
In a recent decision, the NLRB is allowing unions to form small collective bargaining units known as micro-unions with as few as two workers inside one department. Without the ability to unionize full workforces, Big Labor came up with this new idea by virtue of a good friend on the NLRB, Craig Becker. Prior to his recess appointment to the NLRB, Mr. Becker was counsel to the Service Employees International Union (SEIU). Since handing labor this victory, he has since returned to claim his reward, this time at the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), where he serves as general co-counsel.
But micro unions isn’t the only way that the NLRB is stacking the deck in favor of labor – they also green-lighted ambush elections. Giving unions the ability to force an election in a workplace in as few as 10 days, these quickie elections stack the deck against businesses drastically increasing the bosses’ success in unionizing. With just a few days between the time the petition is filed and an election takes place, small businesses with limited resources don’t have enough time to seek outside counsel and make their case to employees.
What’s worse is that even the NLRB isn’t playing fair. The ambush election rule has since been thrown out by the D.C. District Court after it found that the rule passed without a quorum of the board present. But, those are the stop at nothing tactics that characterizes Big Labor these days.
The “Second Bill of Rights” tries to capitalize on the class warfare theme that the Obama Administration and Congress have been pushing for months. Except, America isn’t buying it this time around. The so-called “Second Bill of Rights” seeks a government that confiscates and distributes private resources to the benefit of union bosses and detriment of employees and employers. The end result would be less freedom and economic ruin.
In Big Labor’s “Second Bill of Rights,” America as a whole becomes weaker – but union bosses enhance their power. And, that is really what their vision for the future is all about.
Fred Wszolek is a spokesperson for the Workforce Fairness Institute (WFI).
The child in Hans Christian Anderson’s popular fable blurted out what everyone else in the kingdom knew but was afraid to say: “The emperor has no clothes.” In two friend-of-the-court briefs recently filed in the Sixth Circuit Court of Appeals, the Retail Leaders Industry Association (RILA) and the Coalition for a Democratic Workforce (CDW) persuasively demonstrate that the National Labor Relations Board (NLRB or Board) has no clothes – and it has no place to hide. It’s most far-reaching and controversial decision, Specialty Healthcare, which enabled the formation of micro-unions, is so riddled with holes that it is unlikely to survive appellate court review. The NLRB decided the issue exactly as the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) requested.
When it passed the National Labor Relations Act (NLRA or Act), Congress contemplated broad-based bargaining, units as large as all the employer’s employees. That’s why pre-Obama administration Board law required that any petitioned-for unit of employees be “sufficiently distinct” to warrant separate group identity. Specialty Healthcare, or the micro-union decision, eliminated this requirement. It held that the union can represent any “readily identifiable group” of employees distinguished by as little as the merchandise they sell or the casino table game they play. To get a larger unit the employer must present “overwhelming” evidence in support of it. And to avoid any confusion that the era of broad-based bargaining is over, the NLRB declared that no unit is “inappropriate simply because it is small.”
The briefs describe at least five major problems with the Board’s decision in Specialty Healthcare or the micro-union decision: (1) it rests on a single fundamentally flawed circuit court decision; (2) it fails to identify any reason to justify such a radical change in the law; (3) it undermines the stated policy goals of Congress; (4) it circumvents the democratic process of rule-making; and (5) it will have a devastating impact on American businesses.
The analysis in the Specialty Healthcare or micro-union decision rests almost entirely on a single 2008 D.C. Circuit Court decision that misread long-standing Board precedent. The circuit court concluded that the NLRB’s “consistent analytic” framework for making unit determinations was an overwhelming community of interest standard – the standard the Board adopted in Specialty Healthcare. RILA’s brief analyzes the court’s decision and why it was so wrong. Simply put, the circuit court misread two NLRB decisions. In one decision, it was not the Board, as the court said, that used an overwhelming community of interest standard. It was the employer who argued for one, and the NLRB expressly rejected the employer’s argument. In the other decision, the Board adopted a regional director’s decision that used an overwhelming evidence standard in an entirely different factual context.
The RILA and CDW briefs point out that the NLRB gave no reason for its sudden adoption of such a radically different standard for unit determinations. Mimicking the AFL-CIO’s brief, the Obama Board used the D.C. Circuit Court decision as cover for the new standard claiming it was simply “clarifying” existing NLRB law. That is unlikely to pass muster with the Sixth Circuit, which will require the Board to give a reasoned explanation for reversing 70 years of carefully developed precedent. It will be interesting to see how the NLRB justifies what the dissenting member correctly described as just the “most glaring example of changing Board law for the purely ideological purpose of reversing the decades old decline in union density in the private American work force.”
The Specialty Healthcare or micro-union decision is in direct opposition to Congressional policy on the right of employees to remain union-free. In its decision, the Board harkened back to the un-amended Act of 1935 and declared that the right to self-organize was the “first and central right” set forth. But as CDW points out, the law was amended 12 years later to expressly acknowledge and protect employees’ equal and parallel right to oppose unionization. This 1947 amendment firmly established the principle of workplace democracy as the cornerstone of U.S. labor law. It requires that the Board be neutral on the question of unionization; it must give no greater protection to the right to organize than it does to the right to oppose the union and remain union-free.
RILA explains how Specialty Healthcare or micro-union decision also defeats another fundamental principle of U.S. labor law – majority control. Under the NLRA, if more than 50% of employees in a unit vote in favor of labor, the union becomes the exclusive bargaining representative of all the unit employees – even those who opposed it. But to what group of employees does the majority rule apply – any tiny subset of employees that the union can convince to support it? Decidedly not; too small a unit defeats the practical significance of majority rule and deprives employees who oppose unionization of a meaningful voice on this issue.
One of RILA’s many compelling arguments is that “the Act specifically prohibits what Specialty Healthcare establishes as a rule.” The NLRA prohibits the Board from making a union’s extent of organizing a controlling factor in unit determinations. The NLRB’s new standard violates this prohibition by presuming as appropriate any readily identifiable group of employees that labor petitions to represent – which in all but the rarest of cases will be the employees the union has organized. The Board then insulates that petitioned-for group from challenge by establishing an “overwhelming” evidence barrier the employer must meet for a larger unit.
CDW accurately argues that the NLRB abused its discretion by using adjudication, not rulemaking, to adopt a radically new standard for unit determinations applicable to all industries. Rule-making is an open, transparent, and inclusive process that provides notice and an opportunity for all affected parties to comment. Thereafter, once a rule is finalized, it can be challenged in court by any person aggrieved by it. Adjudication, on the other hand, is far narrower in scope; it is used to resolve a particular dispute between parties. Although third parties may seek to intervene in the action, their right to intervene is limited by agency and court rules.
CDW cites several circuit court decisions that found an agency abused its discretion by doing exactly what the Board did in Specialty Healthcare or micro-union decision – using adjudication to announce a fundamental change in the law that was made applicable to all persons subject to its jurisdiction.
RILA devotes the concluding portion of its brief to the devastating impact that Specialty Healthcare or micro-union decision will have on the retail industry. Instead of a few large units, as was the tradition for decades, retail stores could have a multiplicity of small units – as many as one unit for each department in the store. And large department stores can have as many as 130 departments. This multiplicity of “siloed micro-units” will deprive employees, employers, and their customers of the benefits of an integrated workforce that is capable of performing a variety of tasks in different departments and settings. As a result of union work rules, a sales associate in the men’s suit department may be unable to sell the same customer a tie to match.
This multiplicity of small or mini units represented by a variety of different unions will exacerbate workplace tensions. Employers’ labor relations costs will increase enormously and as RILA warns, “[j]uggling the administrative tasks associated with multiple bargaining agreements could overwhelm businesses.”
A few weeks ago, the U.S. Senate Committee on Appropriations narrowly defeated (15 to 15) a bill introduced by Senator Lindsey Graham to rein in the NLRB and deny it the funds necessary to enforce the Specialty Healthcare or micro-union decision. The Sixth Circuit now has the opportunity to enforce the policy imperatives set forth in U.S. labor law and protect the workplace from piecemeal and forced unionization that will destroy productivity and job creation. RILA and CDW have given the court ample reasons for doing so.