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.

More…

• Prawfsblog, “Should graduate students be able to unionize?“
• Inside Higher Ed, “An Invitation to Unionize“
• Shopfloor, “NLRB Appointments To Raise Higher Ed Costs“

(continue reading…)

In addition to shouting “LIAR” everytime someone asserts, quite reasonably, that the Employee Free Choice Act eliminates secret-ballot organizing elections in the workplace, advocates of the “card check” legislation make all sorts of poisonous claims about business nefariousness. Employers abuse employees, therefore card check is needed, or so the argument goes.

For example, in an op-ed Thursday in the San Francisco Chronicle, “Why workers need the Employee Free Choice Act“:

It is illegal to fire a worker for union activity, but pro-union workers were fired in 30 percent of union-representation elections in 2007, according to the Center for Economic and Policy Research.

Our emphasis.

J. Justin Wilson of the Center for Union Facts looked at the available data from the National Labor Relations Board and disproved labor’s claim. From “An Analysis of Current NLRB Data on Unlawful Terminations During Union Organization Campaigns, 2007 to 2008“:

The facts do not support labor leadersʼ claims regarding employer misconduct during union organizing campaigns. The National Labor Relations Boardʼs data incontrovertibly demonstrates that very few employees are terminated during union organization campaigns due to employers firing pro-union employees.

A similar study of NLRB data, often cited by union advocates, largely confirms these findings. MIT graduate student John-Paul Ferguson examined the CATS database to determine the impact of ULP Charges during organizing campaigns. Ferguson found that between 1999 and 2003, unions filed just 914 meritorious ULPs in conjunction with more than 22,000 organizing campaigns, and only a fraction of those of those ULP Charges contained allegations of unlawful termination.

More than 96 percent of union organizing campaigns occur without an unlawfully terminated employee.

Read the whole thing.

There are studies and studies, and advocates of both sides of hotly fought issues will frame facts to suit their arguments. Comes with the territory.

But organized labor’s promoters of the Employee Free Choice Act routinely distort the facts in order to paint businesses as evil exploiters out to screw the worker. It’s tiresome, it poisons the public debate, and it’s not true.

An excellent example of the intellectual bankruptcy of the pro-Employee Free Choice Act camp is this Marketplace commentary from Robert Reich, former Secretary of Labor, “Time to enact Employee Free Choice Act.”

The sum of Reich’s argument: It’s good to be in the middle class, unions help put people in the middle class, and business treats unions badly.

No mention of the “card check” provisions undermining an employee’s ability to chose freely whether to join a union or not. No mention of binding arbitration, in which a government official would set an employee’s wages and benefits for two years, with no recourse for the employer or employee.

The ONLY mention Reich makes of the actual provisions of the legislation: “The most important feature of the Employee Free Choice Act toughens penalties against companies that violate their workers’ rights.”

And for that reason, “The sooner it’s enacted, the better — for American workers and for the American economy.”

Conscious evasion and boilerplate anti-business rhetoric from someone who supposedly provides an intellectual foundation for organized labor. Embarrassing.

UPDATE (11:45 a.m.): Acknowledging that a Wall Street Journal op-ed allows more detailed arguments than does a brief radio commentary, it’s still worth comparing the intellectual quality of Reich’s commentary with this piece by former Department of Labor solicitor Eugene Scalia, “Secret Ballots Are Free Choice“:

Unions and their supporters in Congress claim that when employees vote on whether to unionize, the elections are tainted by employer intimidation. They’re wrong. And worse than their diagnosis is their cure: Since elections are being abused, they argue, let’s eliminate them. That’s the goal of the Employee Free Choice Act (EFCA), which was introduced in the House and Senate on Tuesday.

From the D.C. Examiner, “Card Check could also mean wage and price control.”

The editorial is about the binding arbitration provisions in the Employee Free Choice Act, the “card check” legislation introduced Tuesday. Section 3 of the bill (H.R. 1409, S. 560) requires a government board to come in and set wages and benefits and what normally would be contract terms if an employer and newly recognized union do not reach a first contract within 120 days. Those terms apply for two years.

As the editorial notes, binding arbitration gives unions little incentive to bargain in good faith. If you’re a union representative, just set your demands high and hope the arbitrator splits the difference. What’s to lose?

Which brings us to the matter of terminology. Here in NAM-HQ a few of us were kicking around wording yesterday: Is the best way to describe the effect of binding arbitration, “government wage and price controls?” After all, government IS controlling wages and the “price” of labor. Pretty ominous.

But we say no, better apply a term like “government-mandated pay” or a phrase, “the government will set everyone’s salary.” You can then argue, “We don’t want a government official deciding that John should get $20 an hour and Mary just $18.”

The trouble with “wage and price controls” is that the term has a history and generally understood meaning. Wage and price controls is what the Nixon Administration did in response to inflation in the 1970s, freezing or capping employee wages and the prices of goods (following the example of government controls in WWII and the Korean War).

Wage and price controls are traditionally supposed to keep prices DOWN, but binding arbitration under the Employee Free Choice Act will introduce government mandated wages that go UP.

So let’s find another way to talk about the effects of binding arbitration.

Besides, we’ll need to use the term “wage and price controls” in the usual sense soon enough, as part of the public debate over the Great Inflation of 2014.

UPDATE (9:45 a.m.): The Examiner’s editorial concludes:

Wage and benefit packages with no relation to market realities have brought Chrysler and General Motors to the brink of bankruptcy. Card Check would force a similarly ludicrous system on many more still-healthy American businesses. If President Barack Obama – who vigorously supports Card Check – and Congress truly want to get America’s economy moving again, defeating Card Check and its compulsory arbitration provision is a must.

Senator Edward Kennedy (D-MA), who did not take part in the introduction Tuesday of the Employee Free Choice Act, had his statement on S. 560 entered into the Congressional Record. You can read it here.

Senator Kennedy has a vision of how the binding arbitration provisions would work:

In the rare instance when the mediation process fails, the bill provides for binding arbitration, which will be handled by a panel of highly qualified arbitrators who have long experience in developing contract provisions that are fair to both sides. This type of arbitration is a tried-and-true method of resolving contract disputes that is already used in the rail and airline industries, and for public sector workers in at least 25 States. 

But the bill’s text:

 `(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.’.

There’s no reference in the legislation to “highly qualified arbitrators who have long experience in developing contract provisions that are fair to both sides.” That’s a good hope, even a reasonable expectation, but we have no way of knowing how the Federal Mediation and Conciliation Service will handle binding arbitration, AKA government-mandated wages and benefits.

The House bill is H.R. 1409.

At today’s Senate HELP Commitee hearing on the Employee Free Choice Act, the same old propaganda line was trotted out: The Employee Free Choice Act does not eliminate the secret ballot, it only gives employees a choice between using “card check” or continuing to rely on an election with a secret ballot. It’s just a choice.

In the real world, this is bunk. From the bill text (H.R. 1409, exactly the same as H.R. 800 in the 110th Congress):

If the Board finds that a majority of the employees in a unit appropriate for bargaining hassigned valid authorizations designating the individual or labor organization specified in the petition as their bar gaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

Our emphasis: Shall not. Since unions don’t file for an election with less than 65 percent of employees having signed cards, the bill DOES eliminate secret ballot elections. In the real world.

Here’s the other reason why the union line about “choice” is a dishonest talking point: In the real world, it’s very, very rare that a  company’s employees decide how to handle an organizing campaign.

Union organizers run the show. And they don’t care what’s in the employees’ interest. They care about the union, union power and union dues.

Read the statement of Larry Getts, an employee of a Dana Corporation plant in Fort Worth, Ind., who testified at today’s Senate hearing.

[It] was easy to see from the get-go that the UAW representative was hardly concerned at all with how he came off to our group and thought he could railroad us all into the union.

The UAW official was even so bold as to curse constantly throughout the presentation, which appalled the elderly women who made up about 80% of our plant.

After this first attempt to organize our shop failed, the UAW changed tactics and sent in a whole new crew.

At that point, it became clear to all of us that the UAW was going to do whatever was necessary to get the required number of signatures.

Union organizers waited for us in the break room, sat with us at lunch whether we wanted them to or not, and walked us to our cars at the end of the day.

The entire time they were constantly badgering us to sign the cards.

That’s the real world. The cards, and the power, were in the hands of union organizers. For employees, there was no choice at all.