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Card Check: Sen. Hatch Warns that NLRB Has Plans

By | Judicial Nominations, Taxation | 2 Comments

Sen. Orrin Hatch (R-UT) spoke on a conference call with bloggers today, primarily on the topic of the tax increases that will hit on Jan. 1 unless Congress extends the lower rates enacted in 2001 and 2003. Among other issues that arose were the Employee Free Choice Act, the potential of a lameduck session of Congress, and President Obama’s recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services.

Sen. Hatch noted that President Obama made the recess appointment before there had even been a committee hearing on Berwick’s nomination, and then, after the appointment, nominated Berwick again. Hatch obviously saw a similarity with the handling of the nomination and subsequent recess appointment of Craig Becker, an SEIU and AFL-CIO counsel, to the National Labor Relations Board. Sen. Hatch:

They’ve got people on the National Labor Relations Board right now that think they can do though regulation, by the board, that which can’t get through the Senate of the United States of America.

The Senate is not going to give them card check, it’s just that simple. So what are they going to do? They’re going to come up with an approach, or have come up with an approach, that says only those who vote count in the card-check area, or in any other area – in other words, only 51 percent of those who vote, in the whole employment complex.

Now that kind of stuff has never been done before, but they’re doing it.

When they don’t have the ability to do what’s right, they’ll do what’s wrong. And to be honest with you, it’s giving us a lot of fits.

Given the context of the conversation, we took Hatch’s “they” to be the Obama Administration and Senate Democratic allies, supported by Big Labor.

Sen. Hatch is recalling the National Mediation Board’s decision in May to allow a union to be recognized if a simple majority of workers who cast ballots approved. The decision, which applies to workers at airlines and railroads, overturned a 76-year-old rule that governed union elections. The new rules went into effect on July 1, the NMB said in a news release.

The Senator’s comments raised a realistic concern: If one regulatory and quasi-judicial agency with an Obama-appointed majority on its board can make such a radical change in longstanding law, what’s to stop the NLRB from doing the same?

Card Check: What Were They Chatting About?

By | Labor Unions, Media Relations | No Comments

Why Mickey Kaus is such a valuable commentator: Who else would have thought to connect the Employee Free Choice Act to the Journolist scandalette?

From Kaus’s post, “Journolist–The Careerist Antidote to Neolib Contrarianism“:

Here’s a crude test: In this group of 400 “center to left” writers, did even one agree with George McGovern about keeping the secret ballot in union elections? If they agreed, did they dare say they agreed?

Congressional Leaders Reaffirm Commitment to Jobs-Killing Legislation

By | Human Resources, Labor Unions | 3 Comments

Speaker of the House Nancy Pelosi (D-CA) spoke to Communications Workers of America convention delegates yesterday. Her remarks to the union activists coincided with what House leaders have deemed “Making it in America” week, promoting a strong manufacturing economy and employment.

Yet the Speaker used this opportunity to reiterate her support for the anti-democratic Employee Free Choice Act, which would lead to the destruction of 600,000 American jobs in the first year after its enactment. As the economic analysis of the legislation by the nonpartisan LEGC shows that for every 3 percentage points gained in union membership through card checks and mandatory arbitration will result in a 1 percentage point rise in the unemployment rate the following year. The Speaker predicted that the legislation would soon be “the law of the land.” Unfortunate.

Meanwhile the head of the Communications Workers of America, Larry Cohen, said, “[When] a majority of the Senate wants to take action, they can.” He added: “There is no hope of any meaningful restoration of private sector bargaining rights as long as we have these Senate rules.”

Mr. Cohen asserts that the only thing stopping this legislation is procedural hurdles in the upper chamber of the U.S. Senate. We respectively disagree. The only thing stopping this legislation is the legislation itself. Countless members of Congress from both sides of the aisle are united in opposition because the bill wouldn’t restore “private sector bargaining rights,” but would instead promote forced unionization, exacerbate labor-management conflict, rob the U.S. labor market of its dynamism and kill hundreds of thousands of American jobs. It appears that union leaders not only want to change labor laws in their favor but also overhaul longstanding Senate rules to pass their priority.

Union leaders’ strategy here is clear. If you don’t have a popular proposal, change the rules of the game.

Contradictions: Labor Secretary Promotes Job Killing Legislation

By | Labor Unions | No Comments

In recognizing the 75th anniversary of the National Labor Relations Act at the Huffington Post, Labor Secretary Hilda Solis gave a plug for organized labor’s highest priority: the Employee Free Choice Act. It’s troubling to see the Secretary of Labor — whose mission is to administer our nation’s employment laws and foster an environment that supports employers’ jobs creation – advocating a proposal that will kill hundreds of thousands of American jobs.

The Secretary writes that she and President Obama support the proposal “so workers can form unions if they choose to without fear or pressure.” But this misguided legislation does just the opposite. By effectively eliminating secret ballot union elections the legislation would only expose employees to greater pressure and intimidation when making the important decisions about forming a union.

We observe that the Secretary uses the popular political cliché of “leveling the playing field.” However, this legislation would acutely tilt the careful balance of fairness upon which our labor laws are based.

We do agree with one point that the Secretary makes: “As we work together to overcome our own Great Recession we need strategies that create Good Jobs.” However, none of the proposals she outlines would either create or help retain jobs.

DISCLOSE: What About the Unions, III?

By | Briefly Legal, First Amendment and Lobbying, Labor Unions | One Comment

The Center for Competitive Politics passes on some important analysis from House staffers about H.R. 5175, the DISCLOSE Act.

The Manager’s Amendment to the DISCLOSE Act, slated for a Thursday floor vote in the House, seems to contain a glaring carve out for the benefit of labor unions, according to a quick analysis by House Administration Committee staff.

The Brady amendment would exempt from reporting requirements transfers between affiliated entities up to $50,000 (p. 10). Even more beneficial to labor unions the bill now reads that if the transferred amount is attributable to individual dues paid on a regular basis then the transfer amount is attributable to the individual rather than the organization (p. 14-15). The average amount of individual, annual dues ($377) is well below the bill’s threshold of $600 for mandated disclosure.

So, in effect, unions would be able to shift unlimited amounts of money around through various affiliated entities and never have to report or disclose any of it. The definition of “affiliate” includes two organizations that are affiliated with the same organization, so the shell game possibilities are endless.

Don’t believe the acronym, the bill is about loopholes and special treatment for politically favored groups.

More from The Daily Caller:

House Democratic leadership is aiming to pass its campaign spending bill on Thursday, while Democrats are defending it from criticism that it includes loopholes for special interests.

The Daily Caller reported Monday that the legislation, called the DISCLOSE Act, shields labor unions from many of its requirements.

For example, restrictions on companies that received government bailouts during the financial crisis apply to businesses, but not unions: Under the DISCLOSE Act, General Motors can’t tell you who to vote for, but the United Auto Workers union can.

Despite heavy pressure from labor unions, supporters have not been able to force the Employee Free Choice Act through Congress this year. Hell of a fall-back position to mollify labor: We’ll limit speech in all federal elections, not just union ones.

UPDATE (12:05 p.m.): More from the Center for Competitive Politics. The lefty Mother Jones publication reported AFSCME’s obviously successful efforts to win this exemption last week:

Mother Jones: “Labor, Guns, and Money”
June 17
AFSCME is trying to exempt state and local political organizations that accept soft money—that is, unrestricted contributions from individuals or groups—from being regulated under the bill. Under the DISCLOSE Act, such groups, which often receive union backing, would have to disclose their donors if their campaign ads reference a federal candidate. AFSCME opposes having to out itself as the backer of these state and local campaign efforts. “The problem is that we have local union affiliates—we have 4000 of them—that could make a contribution to one of these entities…which could trigger these very detailed disclosure requirements,” said Loveless. He said that AFSCME was “trying to protect these local affiliates” from having to make such disclosures.

Straw Men and Boilerplate

By | General | No Comments

From The Detroit News, “Gettelfinger: Organizing unions a basic right“:

United Auto Workers President Ron Gettelfinger gave a preview Sunday of part of his Monday farewell speech at the union’s constitutional convention, telling reporters that he would vigorously defend the right of workers to organize.

Gettelfinger questioned why it is all right for groups like the National Association of Manufacturers to have members, but businesses try to trample the rights of individual employees to form unions and collectively bargain for wages, benefits and working conditions. He made the remarks in response to questions by reporters at a UAW press reception.

Trample the rights of individual employees? Oh, brother. If you want to talk about trampling employee rights, it’s the UAW, not the National Association of Manufacturers, that wants to use card check to deprive employee of secret ballots in union representation elections.

There are plenty of other obvious differences between business associations like the NAM and labor unions. The LaborUnionReport lists prominent ones:

  • Businesses can quit their associations whenever they want, union workers cannot. In fact, trying to get a union out of the workplace is extremely difficult for workers.
  • Businesses can stop paying money to their associations any time they like and the worst that would happen to them is they get kicked out. If a unionized worker quits paying a union, in 28 states, the union can have him fired.
  • Businesses who break an association’s rules can get kicked out, but a union worker who breaks a union’s rules can be placed on trial by the union and fined money.
  • Business associations cannot cause their members to go out on strike, unions can.


The UAW marks 75 years of solidarity at its convention starting today in Detroit, but it sounds like Gettelfinger is choosing to rage instead of celebrate. A sad tone on which to end a career…

Card Check: Big Labor Falls Short in Arkansas

By | Labor Unions, Regulations | One Comment

We’ll defer to the unnamed White House official and his keen analysis of Tuesday’s Democratic primary runoff election in Arkansas between Sen. Blanche Lincoln and labor-backed Lt. Gov. Bill Halter. Lincoln defeated Halter, 52-48 percent. From Ben Smith, Politico:

“Organized labor just flushed $10 million of their members’ money down the toilet on a pointless exercise,” the official said. “If even half that total had been well-targeted and applied in key House races across this country, that could have made a real difference in November.”

Pointless? No, not really. By devoting organizing muscle and pouring $10 million into Halter’s failed effort, the unions proved the point that labor leaders consider their own political power more important than their memberships’ concerns. And their political power is more pissant than puissant.

The anti-democratic Employee Free Choice Act was a big factor in Tuesday’s primary in Arkansas. Labor turned decisively in April 2009 against Sen. Lincoln when, after months of ambiguity, she said she would vote against the Employee Free Choice Act.  Arkansas is a right-to-work state, and depriving employees of the secret ballot in union-representation elections and forcing contract terms onto employers — the heart of the Employee Free Choice Act — is anathema to voters.

Even Halter recognized that card check was bad electoral news. He hemmed and hawed on his backing for the measure, stuck between his need for union cash and voter support.

Lessons learned:

The Employee Free Choice Act is an election loser, which means it will not pass in the second session of the 111th Congress as stand-alone bill. So labor will look to add pieces of EFCA to other legislation, probably adding the word “jobs” to the measure.

The National Labor Relations Board is where the action is. Big Labor maligned Lincoln for opposing cloture on the nomination of SEIU and AFL-CIO counsel Craig Becker to the NLRB. It was a good vote. A recess appointment, Becker is already showing the signs of the pro-labor activism his critics warned of. It may come after the election — certainly after the last Republican appointee, Peter Schaumber steps down in August — but expect NLRB rule-making designed to achieve some of labor’s goals.

Big Labor can promise a candidate support, even deliver on that support, and yet not determine the elections. Voters dislike the bluster and threats of political force — in campaigns, and in the workplace.

NLRB General Counsel Leaves, Could Rule-Making Follow?

By | Labor Unions | No Comments

The general counsel of the National Labor Relations Board (NLRB), Ronald Meisburg, has announced that he is leaving the Board on June 20 to join the law firm Proskauer Rose LLP. Meisburg’s term officially ends on August 14th. When Meisburg departs it will allow the President to nominate an individual to the post that has been filled by Republicans since 2001. It is expected that the deputy general counsel will assume the responsibilities of the general counsel spot until a replacement is confirmed. However, the President has the ability to appoint an interim general counsel during a Congressional recess – as he did with NLRB members Craig Becker and Mark Pearce.

The NLRB’s general counsel is an important position as it is separate from the board and effectively serves as the NLRB’s executive director — responsible for bringing cases before the Board, prosecuting unfair labor practices and maintaining the NLRB’s field offices.

Meisburg’s departure could produce even further process and policy changes at the board. With a 3-1 majority of labor union-side attorneys, plus a new general counsel, an activist NLRB could seek to engage in the rare exercise of formal NLRB rulemaking. Labor leader have pushed for rulemaking to promote the union agenda, including the provisions of the Employee Free Choice Act.

We’re not alone in our concerns with the intent of the current Board. In touting the a new addition to their firm Paul Salvatore, with Proskauer’s Labor & Employment Law Department said that the firm expects “the Obama NLRB to play an activist role, making Ron’s addition invaluable in our ability to serve clients.”

Agreed: EFCA is Radical, Unpopular, and Still a Priority for Some

By | Labor Unions, Regulations | No Comments

The Metropolitan Corporate Counsel interviews Lawrence Z. Lorber , a partner in the Washington offices of Proskauer Rose LLP and one of the best-known lawyers in employment and labor law who has worked employer groups. Lorber takes on a variety of important issues and closes with the Employee Free Choice Act. From “Through The Lens Of A Seasoned Employment Lawyer“:

Editor: Where do the Employee Free Choice Act and card check provisions stand?

Lorber: It is an idea that was advanced by labor academics and labor unions, but it has not been received well in Congress. In my view it is a radical idea to take away the secret ballot and a misguided attempt to solve the unions’ problem of decreasing penetration in the workforce by just putting people in unions without their informed consent. Card check per se is not going to become law. However, there is a new NLRB dominated by recess appointees. So, while I don’t think they can get card check by legislation, they certainly can push expedited elections and many of the other components of the Free Choice Act to see if they can succeed by regulation or case reversal rather than by legislation.

Yes, agreed. Employers have reason to be alarmed by an activist, union-succoring National Labor Relations Board, which explains the fierce opposition to President Obama’s nomination — and recess appointment — of SEIU counsel Craig Becker to the board.

The NAM’s Keith Smith blogged about the latest developments on the Becker front yesterday, the attempt to confirm his nomination to a full term on the NLRB prevented by Sen. Mitch McConnell’s objection to a unanimous agreement request by Sen. Tom Harkin (D-IA), chairman of the Senate Health, Labor, Education and Pensions Committee. In reading the debate between the two Senators, we find this statement from Sen. Harkin:

So, again, you know, Mr. Becker is well qualified. Even my Republican colleagues freely admitted that in the committee, that he was well qualified. Do you know what their objection was? He comes from a union background. He comes from a union background. To the Republicans, that is a mortal sin.

Well, if you are Catholic, you know what that means. That is a mortal sin. That is unforgivable to Republicans to have a union background.

We’ll let Senate Republicans speak for themselves on matters of theology, but it’s not the union background that employer groups like the NAM objected to: It was Becker’s history of radical writings on labor law that dismissed any role for employers in the workplace. The National Association of Manufacturers detailed the objections in a Feb. 8 letter to the U.S. Senate.

Tough Night for the Card Check Crowd

By | Labor Unions | No Comments

Sen. Arlen Specter, as (R-PA) was an original cosponsor of the Employee Free Choice Act when Sen. Kennedy introduced the bill (S. 842) in 2005. He subsequently moved away from the bill, but then in this election cycle as Democrat re-associated himself with organized labor’s No. 1 priority. Who can forget the Senator’s comments at the AFL-CIO convention in Pittsburgh last September, when he proclaimed:

We have pounded out an Employees Choice bill which will meet labor’s objectives. I believe before the year is out, and I will join my colleague Senator Casey in predicting, that there will be passage of an Employees Free Choice Act which will be totally satisfactory to labor.

Speaking at the AFL-CIO gathering, President Obama opened his comments with a salute to Specter for being willing to “fight for the working men and women,” which, given the context, we took to mean union members.

Despite the support of organized labor, Democratic voters said no thanks on Tuesday, nominating Rep. Joe Sestak over Specter for the Senate seat. Big Labor’s two priorities in Pennsylvania in 2010: Arlen Specter’s re-election and the Employee Free Choice Act. Hasn’t worked out, has it?

In Arkansas, the left-wing challenger and labor’s annointed candidate against Sen. Blanche Lincoln failed to unseat her in the Democratic primary. The unions were incensed at Lincoln for her criticisms of the Employee Free Choice Act, and they promised money and support to Lt. Gov. Bill Halter to mount a primary challenge. As The Washington Post reports, “In Arkansas, dissatisfied labor unions worked hard against Lincoln.” Excerpt:

SEIU, which has only 1,000 members in the state, spent more than $1.5 million, including a $1 million television buy, Youngdahl said. The national AFL-CIO spent $3 million or more on Halter’s behalf, spokesman Eddie Vale said.

All that money, all those organizers working the precincts, all that fervor for the Employee Free Choice Act, and the best labor could do was force a run-off election in June. And that’s thanks to D.C. Morrison, a third candidate who, running as a conservative businessman who opposed the Employee Free Choice Act, gained 13 percent of the vote. With Lincoln’s 44 percent of the vote, that’s a 57-percent anti-EFCA vote in the Democratic primary.

The Employee Free Choice Act and labor’s political efforts figured prominently in both races (more in Arkansas), so voters were informed about the issue. The result: The Employee Free Choice Act, rejected by the voters.