Mickey Kaus, the reform-minded blogger now at The Daily Caller, takes note of the comments of Sen. Sherrod Brown (D-OH)  conceding the legislative death of the Employee Free Choice Act (EFCA). According to a report in The Hill, Brown told WVIZ radio, “It’s not going to happen now.”

To which Kaus responds with cynicism disguised by yuck yuck. From “Why K Street Hates Sherrod Brown”:

Brown may have just sent K Street into recession, if that’s possible. Big Business and Small Business, terrified of the “card check” bill–including its mandatory government arbitration provisions–spent heavily on lobbyists to fight it.  How many former Senate staffers have fed their children for the past three years off of the “card check” menace? Businesses are unlikely to keep the fees flowing if the threat has disappeared. They should take up a collection to bring [Atlantic reporter Mark] Ambinder back from National Journal. Or to pay Sherrod Brown to be quiet.  … You’d think by now Brown would know proper D.C. etiquette, which is to pretend “card check” still might, just might, pass, maybe in some “compromise” form. That way Democrats are happy–they’ve led labor on for another cycle–and K Street is happy. Keep hope alive! It’s good for the juice.) …

You bet, the Employee Free Choice Act was a good issue to energize the troops and raise funds for ad campaigns and lobbying. Small, family-owned businesses especially hate the idea of an undemocratic process — card check — being used to turn their operations over to labor unions. Other companies recognized in the Employee Free Choice labor’s strategy for undermining the competitive advantages of locating in right-to-work states. The binding arbitration provisions were indeed anathema to employers: A federal appointee would impose contracts on them!

Of course, labor would not have put so many millions into the bill if they did not see it as necessary to revive private-sector unionization.

NLRB Member Craig Becker

Still, all the calls to action and appeals for money to oppose EFCA would have fallen flat if the bill had not been a real threat to become law. H.R. 800 passed the House in 2007 by a vote of 241-185, and 51 Senators voted for cloture. That was before President Obama, an ardent supporter, won election in 2008. Of course, business groups geared up to fight the bill. They could no longer rely on President Bush to veto the bill.

And now the Employee Free Choice Act is dead, at least legislatively. No one has even bothered to introduce a bill this session.

But at the risk of being accused of ginning up a threat, we assert that labor is still actively working to achieve the fundamental goal of the legislation: rigging the game to favor private-sector unions at the expense of employers. Now they’re just relying on their allies in the Executive Branch to use regulations, orders and decisions to push through the labor agenda.

President Obama is on board. As he told the AFL-CIO Executive Council in August 2010: “My administration has consistently implemented not just legislative strategies but also where we have the power through executive orders to make sure that those basic values are reflected.” And, “We’re going to make sure that the National Labor Relations Board is restored to have some balance, so that if workers want to form a union, they can at least get a fair vote in a reasonable amount of time.”

The NLRB is where the biggest threat lies. Four examples:

1. The three-member Democratic majority is going out of its way to twist labor law and precedent to allow formation of “micro unions,” small bargaining units that could multiply in a single workplace. Instead of making their case to a company’s employees at large, organizers could cherry pick individual groups of employees to unionize. The potential for worksite chaos is huge. (See Shopfloor posts.)

2. The NLRB remains hostile to secret ballot representation elections, which the Employee Free Choice Act sought to eliminate. In January, the board authorized its general counsel, Lafe Solomon, to sue four states that passed ballot measures in 2010 to require secret-ballot union elections. The NLRB had been negotiating with attorneys general from the states — South Dakota, Arizona, South Carolina and Utah — to avoid the suit, but those discussions broke off recently. According to South Dakota Attorney General Marty Jackley, the NLRB demanded the AGs sign a confidentiality agreement and declare their state laws unconstitutional. Even if the NLRB is right on the law — and the National Labor Relations Act would indeed seem to preempt such a state law — no attorney general is ever going to repudiate a measure approved by the voters of his state. The NLRB is picking a fight.

3. The NLRB’s proposal to expand the required employer posting and electronic distribution of notice of union rights is an another aggressive move meant to favor organized labor over employers, exceeding the board’s authority under the National Labor Relations Act. The NAM submitted a comment letter, arguing, “We believe the Board’s proposed rule goes beyond its legal authority to impose such obligations and penalties on employers. Further, the proposed rule runs counter to longstanding legal precedent and lacks the necessary clarity for employers to effectively comply.”

4. On March 11, the NLRB ruled in the case of Mastec v. CWA that threats of physical violence by union supporters against employees were not enough to invalidate a union representation election. As LaborUnionReport.com observed, “Given that the entire voting unit in this case was less than 30, it is hard to imagine that the threats from the pro-union supporters did not have some bearing on the outcome of the election—especially as the union only won by two votes.”

Former NLRB Counsel Ronald Meisburg, now at Proskauer Rose, cites other examples of the board’s recent initiatives in a post, “NLRB Chairman, Acting General Counsel defend recent actions in correspondence to House subcommittee.” Meisburg concludes:

The NLRB has long been a lightening rod for criticism of the “ins” by the “outs”. What is new is the striking amount of activity undertaken in the relatively brief period that the new Obama Board majority and the Acting General Counsel have been in office. This is the product of the high expectations of the labor movement and the fact that two members of the current Board majority, Chairman Liebman and Member Craig Becker, have terms that will be ending this year.

It’s also a product of pro-labor proclivities producing strained anti-business interpretations of the law.  Employer groups warned that Becker would indulge in this kind of injudicial activism given his history as a radical labor theoretician and counsel for the SEIU, which proved sufficient grounds for the Senate not to confirm him. President Obama made Becker a recess appointment, another sign of the President’s commitment to labor’s political agenda despite congressional and public opposition.

Trade associations like the NAM and lobbyists along Kaus’s mocked K Street are not leading a full-press campaign against the NLRB. There are comment letters, lots of blogging, and yes, discussions with members of Congress to determine if legislation might be effective.

But there’s nothing like the high-profile ad campaign and lobbying efforts that business groups mounted against the Employee Free Choice Act. The actions of an obscure Executive Branch board are less susceptible to public and political pressure than a piece of legislation — even though the NLRB may wind up achieving the same anti-democratic goals that the unions sought through card check.

That’s labor and the Obama Administration’s strategy though, isn’t it? Less attention, less accountability, but the same victory for organized labor.

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