Card Check: Thanks, SEIU! We Almost Missed This Op-Ed

By August 11, 2009Labor Unions

Taking a break from intimidating attendees at Congressional town hall meetings — “It is critical that our members…come out in strong numbers to drown out their voices.” — the SEIU responds to an op-ed in The Wall Street Journal by John Irving, former general counsel of the National Labor Relations Board, headlined, “Don’t Employers Deserve Free Speech?

To which the service employees union answers with a forceful NO! At the union’s bully boy blog, the SEIU writer claims, “Shock: Corporate Advocates Who Break the Law Don’t Want to Be Punished.

Here’s a more accurate description: Corporate advocates don’t want employers who express their opinions punished for that expression. And they don’t want speech chilled by union organizers who will use provisions of the Employee Free Choice Act to file repetitive, harassing and groundless complaints in the hope the NLRB might issue an injunction against the employer.

Here’s exactly what Irving said that the SEIU-nik objected to:

Today, according to the National Labor Relations Act—as amended in 1947—employers are permitted to express themselves to their employees with “views, argument, or opinion . . . if such expression contains no threat of reprisal or force or promise of benefit.” Of course, this leaves unclear just what constitutes lawful opinion versus unlawful threats or promises. And over the years, the shifting composition of the NLRB—and of the courts—has caused disagreements over what permissible free speech is.

For example, employers who might sincerely assert to their employees that “unions cause plant shutdowns” or “could cause loss of customers” may or may not be exercising lawful free speech, depending on the views of the labor board at the time. If employers fall afoul of the law today, they face only nonpunitive “make-whole” and “cease and desist” sanctions.

But EFCA dramatically escalates these penalties. Under the new bill, the employer could be subject to a $20,000 fine for each questionable statement, and to near-automatic injunction proceedings based on union-filed unfair labor practice charges.

Union organizers routinely file frivolous complaints during negotiations to drive up the monetary costs and public relations damage from resisting unionization. It’s part of the union playbook.

Anyway, thanks to the SEIU for reminding us of this column by Irving, who is of counsel at Kirkland & Ellis and a member of the NAM’s Labor and Employers Advisory Counsel. It’s a good reminder that the unions may pursue a fall-back strategy with the Employee Free Choice Act in Congress: The card check provisions could well be dead, but labor is still insisting on the horrible binding arbitration provisions. At a late moment to win a vote or two, labor’s allies in Congress could drop binding arbitration and still declare a victory with quick “ambush” elections and increased penalties against employers for expressing their views on unionization. The outcome, while not a full union victory, would still do great damage to employer-employee relations and managerial flexibility.

And the First Amendment.

(Thanks to Mary Katherine Ham The Weekly Standard for noting the SEIU strategy of drowning out their critics. Better drowned out than beat down, one supposes, which is exactly what happened to someone who ran afoul of the SEIU in St. Louis.)

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