George Miller Archives - Shopfloor

Blowing the Whistle on Whistleblower ‘Protections’

By | Briefly Legal, Energy, Human Resources | 3 Comments

Several major bills lately have included provisions to expand whistleblower protections for employees. The goal of such provisions is to allow employees to report actual employer wrongdoing, bringing regulatory violations and crimes to light in order to correct them. In the cases of the Protecting America’s Workers Act, the Robert C. Byrd Miner and Safety Act and now the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, these safeguards are meant to allow employees to report unsafe work practices by employers without retaliation.

These protections would be administered by the Department of Labor through the Occupational Safety and Health Administration (OSHA.) Would they accomplish their stated goal? Well, it’s valuable to look at how other similar whistleblower statutes have played out. OSHA currently has responsibility for processing allegations of whistleblower claims under the Sarbanes-Oxley (“Sarbox”) corporate governance laws. But in examining the caseload of these allegations of the 1,066 claims filed by employees only 25 whistleblower claims were actually upheld. This means that only about 2 percent of all of these whistleblower claims were legitimate.

This is a problem for employers, as they must use valuable resources to address all those other 98 percent of claims that have no merit and are not acted on by OSHA. These claims can be costly and further drive up the cost of doing business in the United States. As several of the aforementioned bills have expansive whistleblower enhancement included, we would hope that Congress would take the time to carefully review and debate the effectiveness of such measures.

The signs of such careful review are not encouraging. The Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 was introduced by Rep. George Miller (D-CA) late Monday night and is slated to be voted on by the full House on Friday. The speedy action is far from the regular order that would allow the careful consideration of such a major bill that would divert resources away from job creation.

Using Mine Safety Bill to Add Costs, Lawsuits for All Businesses

By | Human Resources | 2 Comments

The House Education and Labor Committee continues to quickly move forward with misguided legislation to overhaul our nation’s workplace safety laws. On Wednesday July 21st the Committee marked up H.R. 5663, the Miner Safety and Health Act. As we have noted previously, the bill goes far beyond the regulation of mining to rewrite vast portions of the Occupational Safety and Health Act that affect all businesses. During the mark-up session Committee Chairman George Miller (D-CA) offered a manager’s amendment that made no improvements to the bill’s excesses. The amendment did, however, rename the legislation the Robert C. Byrd Miner Safety and Health Act of 2010.

The Committee rejected amendments that would have improved the legislation. Rep. Cathy McMorris-Rodgers (R-WA) proposed an amendment to strike the far-reaching OSHA provisions in order to keep the legislation focused on addressing mine safety issues. Rep. Tom Price (R-GA) also offered an amendment to strip out one of the more egregious provisions of the bill, language that radically expands criminal penalties for certain OSHA violations via a nebulous system that requires simply a “knowing” standard. Such a standard is unheard of in safety laws and would significantly deter efforts by manufacturers to prevent accidents in the workplace.

Manufacturers regularly perform safety audits of their workplaces in order to assess any potential hazards that may exist. However this provision would find “any company officer or director” subject to criminal penalties if an employee was seriously injured as a result of hazard identified in the audit – even if the employer was in the process of making the necessary changes to address the hazard.

It is very unfortunate that the bill is moving forward without the kind of bipartisan approach more likely to produce common-sense reforms to our safety laws. The bill has the potential to come up for a vote next week during House leadership’s push for manufacturing-oriented legislation. It seems counterintuitive, to say the least, to be pushing legislation that would burden employers with additional costs and more threats of litigation during a time when Members of Congress have publicly committed themselves to improving the competitiveness of our manufacturing economy.

Mine Safety Proposal Includes Sweeping OSHA Changes

By | Human Resources | 2 Comments

A group of Congressional Democrats today announced legislation to make a broad array of changes to workplace safety laws. While the bill primarily seeks to overhaul existing mine safety laws, it includes several onerous provisions taken from the long-pending Protecting America’s Workers Act. Such proposals are simply not the right approach to assist both employers and employees in maintaining safe workplaces.

Instead of promoting a cooperative approach toward workplace safety, the provisions laid out in the Miner Safety and Health Act of 2010 take a punitive approach.

Senators Johnny Isakson and Mike Enzi rightfully point out that today’s efforts stray from previous efforts to develop comprehensive bi-partisan approaches to safety issues, like had been done in 2006. They argue, “Instead of pursuing that productive approach, Democrats have chosen to introduce a sweeping piece of legislation that affects every business in this country and only amplifies the adversarial role of OSHA and MSHA, without increasing safety.”

The proponents of the draft legislation say their motivation comes from the tragedy that occurred at the Upper Big Branch mine, but it’s a mistake to treat such unfortunate incidents as anything other than exceptions. Members of Congress should recognize that for decades, America’s manufacturers have improved the safety of their workplaces. According to the Bureau of Labor Statistics, incident rates for workplace illnesses and injuries have improved 54 percent since 1994. During this same time frame, workplace fatalities in manufacturing facilities have decreased 38 percent.

Included in this proposal is language that would enable OSHA inspectors to shut down operations and force employers to make changes to their workplaces in response to alleged hazards that may be identified by an inspector. Yet for each day it took the employers to put the required changes into effect, they would be fined $7,000 and, at the same time, not have the ability to appeal the decision of the inspector if his assessment is incorrect. Such an approach represents a huge blow to the due process rights that are inherent in our legal system.

Proponents are focusing their attention on mine safety, but in reality, this package would represent be one of the most sweeping changes to the OSH Act since its inception. In many ways the proposal would actually hinder the safety efforts by manufacturers by promoting an adversarial relationship between OSHA and the employers. We hope that Members of Congress will recognize that this is the wrong approach to our shared goal of making our workplaces safer and threatens the continued trend of improved safety. Placing further burdens on employers at a time when manufacturers are attempting to regain their economic footing hinders our ability to create and retain jobs.

Card Check, NLRB: At Berkeley, a Hearing on First Contracts

By | Education and Training, Labor Unions | No Comments

The House Education and Labor Committee has scheduled a field hearing next Friday in Berkeley, with a hearing title that raises suspicions that advocates of the Employee Free Choice Act (EFCA) are looking for another way to sneak through provisions of the legislation. The hearing was called by Chairman George Miller (D-CA), chief sponsor of EFCA (H.R. 1409) in the House.

The hearing’s title: “Understanding Problems in First Contract Negotiations: Post-Doctoral Scholar Bargaining at the University of California

A central, anti-democratic provision of the Employee Free Choice Act is the imposition of binding arbitration in first-contract negotiations. Under Section 3 (see extended entry), a panel of government-appointed arbitrators forces an agreement onto an employer and employees if a first contract is not reached within 90 days of negotiations and 30 days of mediation. As Richard Epstein of the University of Chicago Law School puts it, “[EFCA’s] compulsory arbitration structure introduces a partial but large-scale, covert government takeover of the private sector.”

And talking about “sneaking through,” here’s an unusual addition to the hearing notice: “Due to the off-site location of this hearing, there will be no webcast, videos or photos.”

There’s no lecture hall at Berkeley with video or Internet connections? Or space to take a photo? Ridiculous.

Another reason to pay attention to the hearing is its focus on union representation in the university setting. When President Obama made the recess appointments of Craig Becker and Mark Pearce to the National Labor Relations Board, speculation immediately started that the new, activist and pro-labor NLRB would find a way to reverse the board’s 2004 decision in the Brown University case (Brown University, 342 NLRB at 487), which held that graduate student teaching assistants could not unionize. But what about post-doc scholars?

The NLRB’s Chairman, Wilma Liebman, certainly anticipates the issue. As The Chronicle of Higher Education reported, “Faculty-Union Allies, Hopeful About Obama’s Labor Board, Hear From Its Leader“:

It’s only a matter of time before the National Labor Relations Board is faced with a challenge to a 2004 ruling that says graduate students at private institutions aren’t employees and therefore don’t have bargaining rights, its leader told attendees at a labor conference here on Monday.

“This is not an issue that we’ll bring up, but I have heard there are cases out there in the works,” said Wilma B. Liebman, the opening speaker at the conference, held at the City University of New York’s Baruch College.

So here it is, the issue being brought up, courtesy of the House Education and Labor Committee.


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Card Check: Accountability, Misquoting the Wall Street Journal

By | Labor Unions | No Comments

A constituent calls Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, to task for knowingly misrepresenting the Wall Street Journal’s opposition to the Employee Free Choice Act. From the Contra Costa Times letters, April 9.

When a congressman gets 75 percent of the vote, as Rep. George Miller did in 2006 and 2008, one would think he would not need to lower himself to deception, as he did in his April 4 letter.

Miller wrongfully accused your editorial of misrepresentation of the facts regarding his support for the misnamed Employee Free Choice Act.

Miller stated: “Even The Wall Street Journal editorial page acknowledged that our bill does not eliminate the secret ballot.”

Here is the full quote Miller is referring to: “The bill doesn’t remove the secret-ballot option from the National Labor Relations Act but in practice makes it a dead letter.”

On March 27, the Journal published an editorial castigating Miller, his Web site and some others for using only the first part of that sentence.

They are taking the comment 100 percent out of context and using it to deceive others into believing EFCA does not effectively end the true purpose of the secret ballot.

Why does Miller feel the need to misrepresent the facts to support his position? Certainly it is not to get votes, as he has all he needs.

Don’t we, as residents of his gerrymandered district, deserve better?

Dennis Lund

As we’ve suggested before (here and here), if your most prominent public advocate and Congressional supporter feels compelled to misrepresent the legislation, he must have doubts about its merits.

Card Check: Just Because You Call it a Compromise…

By | Labor Unions | No Comments

From The San Francisco Chronicle, a notebook column by Andrew S. Ross anticipating “compromise” on the Employee Free Choice Act, “Union-organizing bill is getting revised“:

East Bay Rep. George Miller has been leading the charge in the House, but his people are well aware of the situation. “We always assumed we would have to modify it,” said a member of Miller’s education and labor committee staff.

I’m told that conversations with staffers from Iowa Sen. Tom Harkin‘s office, which is doing the heavy lifting on the Senate side, are focusing primarily on the card check provision. As written, it would allow workers to bypass the traditional secret ballot and form a union if more than 50 percent sign cards. One compromise being bruited: ensuring a worker’s right to opt for a secret ballot election, rather than simply checking “yes” on a card.

This appears to be a reference to the “dual card” approach that some of the more aggressive labor activists are casting to see if anyone bites. But it does nothing to reduce the loss of privacy and intimidation concerns that make “card check” unacceptable. Instead of union arm twisting around the message of, “Sign this card,” the message becomes, “Check here. Now sign this card.”

That’s not a compromise.

UPDATE (11:40 a.m.): The Washington Post sought comments from various people involved with the Employee Free Choice Act debate in a Sunday article, “Topic A.” The AFL-CIO’s John Sweeney wasted no time in getting to class warfare: “Our nation stands ready to emerge from the modern-day era of the Robber Baron. For three decades, we’ve valued corporate profit over people and CEO pay over people’s pocketbooks.” Yeah, just call him Mr. Compromise.

Card Check: Even the Chairman of House Ed&Labor

By | General | No Comments

On March 27th, the Wall Street Journal issued a sharp rebuke to supporters of organized labor who misquoted and distorted a sentence in an editorial. As we’ve noted several times (here and here), the Journal’s sentence was this:

  • “The bill doesn’t remove the secret-ballot option from the National Labor Relations Act but in practice makes it a dead letter.”

The distorters turned it into this:

  • “The bill doesn’t remove the secret-ballot option from the National Labor Relations Act…”

The title of the Journal’s editorial, “George Miller Loves Us –Too bad he and Big Labor can’t read.”

So the Journal is clearly on record calling the distorters on the carpet, chief of which is Rep. George Miller (D-CA), Chairman of the House Education and Labor Committee.

On Saturday, April 4, the Contra Costa Times ran a letter to the editor from Rep. George Miller, “Rep. George Miller: Times is wrong on union bill.” The first sentence:

Your readers deserve better than your editorial on the Employee Free Choice Act. Even The Wall Street Journal editorial page acknowledged that our bill does not eliminate the secret ballot.

Organized labor has never wanted to talk about what the Employee Free Choice Act actually does, instead preferring to offer euphemisms about “building the middle class” and “leveling the playing field.” We’ve come to expect pure cant and deceit from labor activists on this issue, so misquoting the Wall Street Journal is no surprise — except that it’s so obvious a misrepresentation.

But when a chairman of a House committee, an elected official, not only misrepresents an opponent of card check to make his case, and then continues to indulge in the misrepresentation after he’s been called on it…well, it IS a surprise.

What it tells you is that advocates for the Employee Free Choice Act know they can’t win the argument on the merits of their case.

Card Check: Introduction May Be Soon

By | Labor Unions | 2 Comments

Adding even more butt to the scuttle about the Employee Free Choice Act being introduced Wednesday (see earlier post), we see that Rep. George Miller’s request for orginal cosponsors now sets Tuesday, February 3, as the deadline for signing on. The e-mail is appended below, again with identifying information omitted.

Typical PR event would be to have a big rally at the Capitol and then drop the bill that same afternoon.

Forecast: Snowy and windy on Wednesday. How fitting that the bill be introduced amid bluster.

BTW, last week, Vice President Joe Biden talked about timing. From the WSJ’s Washington Wire blog:

On Thursday, in an interview with CNBC, Vice President Joe Biden was asked if the administration was going to push for the Employee Free Choice Act rapidly. Biden replied that the administration would put for it “prudently,” with an understanding that there is “only so much on the plate these first couple months” and that there will need to be compromise.

When CNBC’s John Harwood replied, “Sounds like that is a 2010 or beyond issue,” Biden protested: “No, no, no, no.

“This year. This year, we hope,” he said. “Our expectation is this year, this calendar year, that we will move, and hopefully with some bipartisan support, to dealing with this issue.”

And here’s the e-mail from the House Education and Labor Committee, which MIller chairs:

Cosponsor the Employee Free Choice Act!

Deadline for Original Cosponsors is next Tuesday COB

From: The Committee on Education and Labor

Sent By: xxxx@mail.house.gov
Date: 1/30/2009

Be an Original Cosponsor of

The Employee Free Choice Act

Original Cosponsor Deadline is Tuesday, February 3, 2009!

January 29, 2009

Dear Colleague:

Card Check: A Rally and Introduction and the Big Lie Technique

By | Economy, Labor Unions | 2 Comments

We’re hearing through the grapevine that the union front group, American Rights at Work, is organizing a rally at the Capitol for Wednesday to promote the anti-democratic Employee Free Choice Act. The rally could signal introduction of the bill; Rep. George Miller (D-CA) recently sent out a “Dear Colleague” letter soliciting cosponsors.

American Rights at Work launched a big ad campaign Sunday (video, newspaper) attacking employers as evil and exploitative and again using the Big Lie technique of claiming the Employee Free Choice Act doesn’t eliminate the secret ballot in union elections.

In some abstract, theoretical world, maybe, but in the real world of the workplace and union organizing, of course the legislation eliminates the secret ballot. Organized labor is playing workers and the public for idiots.

Labor claims that the secret ballot still exists because unions could ask for an election after collecting signatures from 30 percent of a workplace’s employees. Once you reach 50 percent (plus one), card check calls for immediate representation without an election, but between 30 and 50 percent it’s still possible.


James Sherk of the Heritage Foundation explains the falsehoods behind the claims in this background memo, “Employee Free Choice Act Effectively Eliminates Secret Ballot Organizing Elections”:

[Unions] do not file for an election with cards signed by only 30 to 50 percent of workers. Rather, they only file for an election when they have a superma­jority of cards because workers who sign in front of an organizer often vote “No” in the privacy of the voting booth.[14] Internal union studies show that the union does not have even odds of winning an election until 75 percent of employees sign cards.[15] Unions will not go to the polls without majority support because they know they are unlikely to win and, if they lose, federal law bars them from calling for another election for a year.[16]

Under EFCA, once cards have been obtained from a majority of workers, unions would not file for an election. In fact, EFCA specifically bars the NLRB from conducting an election if the union turns in cards from a majority of workers. Union organizers’ jobs are to recruit new union members to pay 1 to 2 percent of their wages as dues to the union. They are not paid to give workers a chance to rethink the wisdom of union membership.

The American Rights at Work advertising campaigns follows a flood of letters-to-the-editor making the same preposterous claim that secret ballots will be preserved. We think two political dynamics are at work:

1. The public understands the importance of a secret ballot; polling shows overwhelming opposition to the destruction of secret-ballot elections.

2. Labor wants to intimidate questioning about secret ballots. Such a rabid anti-business ad campaign will certainly be noticed by the media, and the bullying tactics could well have a chilling effect. “How dare you ask that question? You’re a business stooge!”

Labor is running a profoundly dishonest campaign to pass a bill that cannot pass on its merits. In the process, they’re encouraging a political atmosphere that demonizes employers just when America needs jobs the most.

Ugly stuff.

Card Check: The Dear Colleague Letter

By | Labor Unions | One Comment

Noted below is the somewhat odd fact that the Employee Free Choice Act hasn’t even been introduced in the 111th Congress yet. You would think that union supporters would have had enough clout to make it a Day 1 hoopla-and-huzzah piece of legislation, but the strategy is obviously otherwise. Perhaps a May 1 introduction date instead?

In preparation for its introduction, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, has sent around a Dear Colleague letter asking for original cosponsors. Here’s the text of the letter/e-mail. (We’ve cut out the identifying phone and e-mail.)



Be An Original Cosponsor of the Employee Free Choice Act

From: The Committee on Education and Labor
Sent By: XXXX
Date: 1/22/2009

Be an Original Cosponsor of

The Employee Free Choice Act

January 22, 2009

Dear Colleague:

In the 110th Congress, we made historic strides in the fight for workers’ rights and economic fairness.  The Employee Free Choice Act, which would restore workers’ rights to organize and collectively bargain, garnered 234 House cosponsors, from both sides of the aisle.  It passed the House with 241 bipartisan votes. 

Unfortunately, opponents refused to allow a vote in the Senate on this critical bill for working families, and the Bush White House promised a veto.

As we begin this new Congress, with stronger pro-middle-class majorities in both Houses and a President who supports the bill, I am writing to urge you to join me as an original cosponsor of the Employee Free Choice Act. 

This bill is more important than ever.

As the current economic crisis shows us, we cannot maintain or grow a middle class on creditDuring the last recovery, real income stagnated or declined for most Americans, even as productivity increased.  Americans relied on increased consumer debt and decreased savings rates to maintain middle class lifestyles.  This proved unsustainable.  To ensure that the next economic recovery is fair and sustainable, we must re-link rising productivity with rising wages.  Workers need to be able to exercise their rights to join together and push for a seat at the table and a better deal.  The Employee Free Choice Act is critical for an economy that rewards work and works for everyone.  As Nobel Laureate economist Paul Krugman recently explained:  “[The Employee Free Choice Act] will enable America to take a hu! ge step toward recapturing the middle-class society we’ve lost.”

  • The current system for forming unions and bargaining is badly broken.  Workers are frequently Read More