Today, the House Education and Labor Committee’s Workplace Protections Sub-Committee will hold a hearing to discuss proposed changes to the Protecting America’s Workers Act (H.R. 2067). Unfortunately, this legislation seeks to simply increase penalties on employers for OSHA violations and expand liability instead of promoting cooperative engagement between employers and OSHA. For OSHA to be successful, manufacturers need the agency to be a resource as much as it is an enforcement agency. This bill and subsequent changes that are likely to be considered overturn more than 15 years of cooperative efforts between OSHA and employers.

For several years we’ve seen continued improvement in workplace injury and illness rates. This improvement is largely the result of a new approach to OSHA that first came about during the Clinton administration. Instead of an approach of just levying higher penalties and issuing more citations, the agency began to proactively work with employers to ensure that they had the resources and information necessary to make workplaces safer.

The goal of any OSHA legislation should be to make workplace safer. This legislation will foster a more adversarial relationship between employers and will not assist employers (particularly smaller sized employers) in better understanding the complex framework of existing OSHA requirements.

Roll Call has a story discussing the role of organized labor groups in the Pennsylvania Senate primary race between Rep. Joe Sestak (D-PA) and Sen. Arlen Specter (D-PA.) It discusses the role that the jobs-killing Employee Free Choice Act plays in the race. While Senator Specter came out strongly in opposition to this card check legislation, he has been keen to express his interest in putting forward an alternative version of the bill.

In reference to the bill, the head of the Pennsylvania AFL-CIO, Bill George, says that labor’s highest priority is “…like water over the damn,” [sic] George added:

That first bill’s gone and consequently, it’s time to move forward. And Arlen Specter was very instrumental with other Senators getting an agreement.

What agreement?

We’ve heard a lot of discussion about a possible alternative-EFCA bill, but any proposal based on the fundamentally flawed EFCA would be devastating to employers and employees alike. If an agreement has been reached, why is nothing is available on it? As we enter the campaign season, we hope that maneuvering over versions of a bill that would cost hundreds of thousands of American jobs doesn’t become part of a political strategy to woo one key interest. Any elected official should soundly reject the Employee Free Choice Act, in any form.

As we noted earlier today, the Senate HELP Committee held a hearing on the Paycheck Fairness Act this morning. The NAM joined with many other employer groups in sending a letter to the HELP Committee members prior to the hearing. Our letter explains that the Paycheck Fairness Act “would jeopardize employee incentive pay and employee privacy, and promote costly litigation against even well-intentioned employers – all while doing little to prevent actual wage discrimination.”

Our letter further explains that if the bill were to become law it would:

threaten employee bonus or incentive pay that, by definition, provides some employees a higher wage than others,

prohibit employees from negotiating higher pay either before being hired or during employment,

allow employees’ wages to be disclosed to peers, friends, family and competitors,

require employers to submit pay data on their employees to the Federal government,

force the Labor Department to reinstate a flawed and duplicative pay grade survey that has proven ineffective at enforcing civil rights laws among federal contractors,

make it easier for trial lawyers to file large class actions against employers, and

establish unlimited punitive and compensatory liability under the Equal Pay Act against employers of every size.

While the Senate has been focusing on numerous bills to create jobs, it seems counterintuitive to move forward on legislation that would make it more difficult for employers to create and retain jobs.

As noted at Shopfloor yesterday, many labor groups are pressuring President Obama to seat Craig Becker to the National Labor Relations Board (NLRB) via a recess appointment, despite objections from the Senate. Some have questioned the validity of the Board’s current quorum and have argued that with only two members the Board is crippled. However, if the Senate truly feels that the Board needs an unquestionable quorum to be successful, Sen. Mike Enzi (R-WY), who serves at the Ranking Member on the Senate HELP Committee, lays out an easier option: Confirm the two pending nominees.

From a Feb. 9 floor statement:

I wish to point out that there is another way. There at three current vacancies at the National Labor Relations Board, and the HELP Committee has unanimously approved the President’s other two nominees. If the Senate wanted to confirm two new members to the Board, it could have easily done so today. [February 9, 2010] In fact, it could have done so last year. One of these nominees, Mark Pearce [a Democrat], is a labor-side attorney who has spent his career representing labor unions. The other is a Republican nominee with management-side experience in addition to tenures on the staff of the National Labor Relations Board and in the Senate as my labor policy director, Brian Hayes. Yet these nominees did not inspire objections from HELP members on either side of the aisle.

It is disingenuous to suggest that the only way that the Board can function properly is through the controversial action of a recess appointment. If the Senate wants to ensure the effective operation of the NLRB, Senator should move to confirm the other two nominees now awaiting confirmation.

The Senate HELP Committee this Thursday will hold a hearing on the Paycheck Fairness Act. While this bill’s title gives the casual observer the sense that it will prevent discrimination in pay, in reality it only promotes more litigation. In the process, the legislation creates tremendous uncertainty for employers who are struggling to create and retain jobs in these trying economic conditions.

This legislation will be a boon to the trial bar by allowing unlimited punitive damages and larger class action suits against employers under the Equal Pay Act. Because the Equal Pay Act is a strict-liability statute, plaintiffs’ attorneys don’t even need to demonstrate an employer’s intent to do harm to file a suit. If passed into law the Paycheck Fairness Act would force employers to second-guess every pay decision that they make.

In addition, the bill eliminates key employer affirmative defenses when presented with such claims. Just last year EEOC data shows that fewer than 5 percent of discrimination claims actually had legal grounds behind them. What does this mean? Even though a case may not have grounds, it forces employers to mount expensive defenses themselves against such claims. As The Washington Post when they rightfully pointed out that this legislation “risks tilting the scales too far against employers and would remove, rather than restore, a sense of balance.”

While illegal discrimination has no place in today’s workplaces, this legislation will not address those issues. Discrimination on the basis of gender is already illegal. The legislation does not make discrimination any more against the law, it simply opens up the judicial process to more civil lawsuits based on equal pay claims. Who benefits? Not the worker, the lawyers

Today, OSHA held what we hope is the first of many efforts to reach out to the employer community to discuss key issues facing the agency. I was able to speak at the “OSHA Listens” event to offer manufacturers’ suggestions for how OSHA can assist employers to make workplaces safer. First, it’s important to realize that our workplaces have continued to become safer. Second, policymakers need to understand what efforts have helped contribute to these improvements. In pursuing an overly aggressive, enforcement-first agenda, the agency could allocate resources away from effective compliance assistance programs.

In my remarks I emphasized that OSHA is not the entity that actually makes workplace safer. Safety is achieved by employers and employees alike. Some people who gave presentations at today’s event argued that the best way to ensure that employees are involved in workplace safety is through union representation. However, safe workplaces are a right afforded to all workers, not just those covered by a collective bargaining agreement.

Today’s session afforded OSHA’s leadership a unique opportunity to hear directly from a wide array of stakeholders. While many express the opinion that safety is measured best by the number of OSHA citations and enforcement actions, we disagree. Safety is best measured by the absence of accidents, and to achieve that goal, OSHA should be a resource for employers and employees as much as it is an enforcement agency.

To read my prepared remarks, click here.

The Senate today failed to invoke cloture on the nomination of Craig Becker to serve on the National Labor Relations Board (NLRB.) With 33 bipartisan votes to oppose moving his nomination forward, the Senate recognized that the views of Mr. Becker are far outside the mainstream and ill-suited for a member of the NLRB, an independent agency that carries out quasi-judicial deliberations. (The vote was 52-33; 60 votes are needed to achieve cloture.)

The National Association of Manufacturers (NAM) appreciates the Senators who took into account the views of hundreds of manufacturers who wrote this week to register their objections to Becker’s nomination. These companies recognize that the changes in labor law that Mr. Becker has advocated would limit the rights of employers and employees alike and promote adversarial workplace relations. The NAM sent a letter today to each Senator strongly opposing Mr. Becker’s nomination. Excerpt:

Mr. Becker has asserted views that the NLRB should rewrite union election rules in favor of union organizers. Such policy decisions should only be determined by Congress. The NAM is particularly concerned that if confirmed, Mr. Becker would seek to advance aspects of the job-killing Employee Free Choice Act through actions of the NLRB.

For more on this issue, click here.

More than 550 manufacturing employers and organizations have urged Senators to oppose the controversial nomination of Craig Becker to the powerful National Labor Relations Board.

In the letter distributed Monday, manufacturers expressed their concerns with Mr. Becker’s views to limit employers’ ability to communicate with their employees regarding union organizing efforts. Under current law, employers’ rights to communicate with their employees are protected so long as the speech does not contain a “threat of reprisal or force or promise of benefit.” However, Becker has expressed support for severely restricting employers’ free speech rights through quicksnap elections, and bans on meeting with their employees, among other steps.

From the letter:

The nomination of Mr. Becker poses a threat to our labor law system, as his views and interpretation of labor law would radically change the nature of the NLRB. In numerous academic journals and other writings, Mr. Becker has espoused views that indicate he believes the NLRB has the authority to make certain decisions that are pending in proposed legislation. Such views would limit employers’ ability to communicate with their employees regarding union organizing efforts and would promote a system of adversarial employee relations. Based on his previous statements, we feel Mr. Becker would direct the NLRB to rewrite current union election rules in favor of union organizers, a decision that should be left to Congress. In particular, we are concerned that Mr. Becker would use the actions of the NLRB to advance aspects of the jobs-killing Employee Free Choice Act.

As employers, we feel that members of the NLRB should be unbiased and committed to the principles of fairness and balance that have developed our labor law system. Mr. Becker’s radical interpretation of these laws is not appropriate for members of the Board, who are charged with administering our nation’s labor laws in an unbiased manner. 

If Becker is confirmed and his beliefs are executed through NLRB actions the group that would be most harmed wouldn’t be employers, it would be employees themselves. Employees would lose the opportunity to be fully informed about the labor union that has filed a petition to be their exclusive representative for representation in collective bargaining.

Mr. Becker’s views go exactly counter to their policy of the NAM that has been previously stated in a letter to Senate HELP Committee members:

The NAM firmly believes employees should have access to information from both employers and union officials and the ability to carefully review that information in order to better make important decisions that impact their jobs and families.

Over the weekend Richard Trumka, head of the AFL-CIO, made several media appearances to stress that big labor bosses remain steadfast in their commitment to pushing the jobs-killing Employee Free Choice Act in Congress, the public’s steadfast opposition notwithstanding.

On Bill Moyers Journal, Trumka stated that that the unions have 59 votes lined up in the Senate right now to pass the bill. It’s a strange count, much higher than ours. Does this statement from Mr. Trumka mean that Senator Blanche Lincoln has changed her mind and will vote for the bill? Will Sens. Evan Bayh and Ben Nelson do the same? We think that it’s wishful thinking from desperate labor leaders.

A comment made by Mr. Trumka during the “Last Word “ with CNN’s John King also seems intentionally vague. In the interview he said, “I think we’ll get health care done and I think we’ll get labor law reform done before the year’s up.” Done how? With Congressional action unlikely on the Employee Free Choice Act, perhaps he means enacting its provisions through the National Labor Relations Board. That’s why some in the U.S. are rushing through the nomination of AFL-CIO associate counsel Craig Becker to the NLRB, so the board’s new majority can indeed get “labor law reform done before the year’s up.”

The NAM is working with other employer groups to urge the Senate to reject the controversial nomination of Craig Becker to the NLRB. This morning a letter was sent to the Senate from 23 associations taking the rare step of opposing his nomination.

The Department of Labor today released its annual report on union membership. The data show that while the number of union members is dropping, so too is the proportion of union members in the workforce. The figures for private sector union membership in today’s report decreased from 7.6 percent in 2008 to 7.2 percent last year and down from 11.4 percent to 10.9 percent for the manufacturing workforce.

Is this trend one that should be countered by forcing more people into union membership? That seems to be the argument that Labor Secretary Hilda Solis derives from the new figures, in a statement calling for passage of the jobs-killing Employee Free Choice Act (EFCA). She says:

As workers across the country have seen their real and nominal wages decline as a result of the recession, these numbers show a need for Congress to pass legislation to level the playing field to enable more American workers to access the benefits of union membership. This report makes clear why the administration supports the Employee Free Choice Act.

It’s clear that union leaders and their allies are frustrated with the lack of progress to enact their agenda and the fact that fewer workers are choosing to join a union. However, that’s no cause to radically overhaul our labor law system at the expense of our economy and workers’ rights.

This renewed effort by labor leaders and the Administration to enact the jobs killing card check legislation is certainly cause for concern. While this legislation could reasonably be expected to reverse the downward trend of union membership, it comes with high price tag: it would result in the loss of 600,000 jobs in the first year alone. As policymakers turn their focus to job creation efforts, it is contradictory to advocate proposals that will instead destroy jobs – and force people into union membership against their will.