Results matching “"card check"”

April 15 roundup - PointOfLaw Forum

All-labor- and employment-law edition:


  • A view from some EFCA backers: leadership and labor base are marching in different directions on this thing [Michael Fox]. Senate vote count shows why labor's mulling card check compromise [same]. Constitutions of some pro-card-check unions ensure members' right to use secret ballot to elect officers [Carter @ ShopFloor on Screen Actors Guild and more, von Spakovsky @ NRO on Teamsters]
  • Circuits are split on effects of bankruptcy on union contracts, which may affect where GM or Chrysler file for protection [Bales, Workplace Prof Blog]
  • "Gearing Up for Tougher Wage & Hour Enforcement from DOL", including 250 new investigators [Michael Fox]
  • Mitch Rubinstein (St. John's, Adjunct Law Prof) on stimulus bill's provisions on labor, employment law [SSRN via Bales/Workplace Prof]
  • TARP recipients under political pressure not to use H1-B immigration program [Felix Salmon] Update: So now Wall Street firms are just relocating the hires to other countries, and everyone can be happy [WSJ]
  • 45 percent of French in poll said to find boss-napping acceptable tactic [Stuttaford, NRO "Corner"]

Card Check Workers Can Only Check In - PointOfLaw Columns

By Diana Furchtgott-Roth

This piece originally appeared at Real Clear Politics, 3-12-09. Diana Furchtgott-Roth is a senior fellow at the Manhattan Institute.

Stock markets are near their lowest levels in years, the federal budget deficit has shot to an all-time high, consumer confidence is at a record low, the unemployment rate has been rising and hit 8.1% in February, and over four million jobs have disappeared in the past year. Yet on March 10 congressional Democrats introduced in the House and Senate the misnamed Employee Free Choice Act.

Contrary to its name, the bill's main thrust is not to widen employees' choices, but to narrow them. It eliminates the secret ballot for union elections. Under the law now, if a sufficient number of workers petition the National Labor Relations Board to join a union, the Board conducts an election--by secret ballot--to see if a majority wants a unionized shop.

The Employee Free Choice Act would allow workplaces to be unionized without secret ballots. If a majority of the employees sign a card that says an employee wants to join a union, a process known as "card check," the workplace can be unionized. This process strips workers of the protection of a secret ballot and exposes them to coercion by union organizers and leaders.

With card check, workers can check in but they can't check out. For workers to leave the union, a secret ballot would still be required. This is the height of hypocrisy--that the so-called benefits of "employee free choice" only apply to join a union but not to leave it.

Equally harmful is the bill's little-publicized mandatory arbitration provision, which short-circuits collective bargaining. If the union and the employer fail to reach an agreement on pay and benefits after 90 days of talks, the bill would require them to submit to binding arbitration, with a mandated contract that would hold for the next two years.

That requirement would be unprecedented in American labor law. It would revoke the basic principle of free collective bargaining--that employers and unions may disagree unless they voluntarily accept arbitration.

The union-sponsored bill is intended to help unions reverse a long-term decline in membership. It would harm the economy by increasing unemployment, potentially making the economies of Texas and Oklahoma look more like those of Ohio and Michigan. And, despite his talk of fiscal responsibility, President Obama has promised to sign the bill if it reaches his desk.

Chairman George Miller of the House Education and Labor Committee offered this defense of the bill: "If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create."

The problem is that the Employee Free Choice Act, if passed, would do just the opposite. It would slow economic recovery by increasing unionization, artificially raising wages, and therefore raising unemployment. It would turn states with below-average unemployment rates, primarily in the South, into states with high unemployment rates.

What Mr. Miller is asking for American workers is less than what he once sought for Mexican workers. In a letter dated August 29, 2001, coauthored with 15 other congressmen, Mr. Miller wrote to the arbitration council in Puebla, Mexico, "We feel that the secret ballot is absolutely necessary to ensure that workers are not intimidated into voting for a union they might not otherwise choose."

Why would Mr. Miller strip American workers of that protection? With union membership declining and now at a weak 7.6% of private sector workers, building up dues-paying membership is the unions' paramount goal, despite the harm it would do to the economy.

In the 2008 election cycle, unions gave millions to Democratic candidates for Congress. Now they want to collect on their investment.

But the deep slump in the economy has eroded support for the Employee Free Choice Act among members of Congress. The bill will pass the House, even though its number of cosponsors has slipped from 230 to 223.

The Senate, however, is a different story. Whereas the bill had 46 cosponsors in the Senate in 2007, it now has 40. If the bill does pass, President Obama has said that he will sign it.

Organized labor made repeal of the secret-ballot requirement a high priority because the intrinsic rationale for unions has been weakening.

Fewer workers see the need to belong to unions because basic health and safety conditions have become standard. Many unions price their workers out of jobs, sending jobs overseas or to more efficient nonunion firms, while taking dues from members to spend on political campaigns and high salaries for union officials. Workers can see that unionized domestic auto companies, notably GM and Chrysler, are in worse shape than foreign companies with nonunion American plants, such as Toyota, Nissan, and Honda.

Nonunion firms have more flexibility to adapt to changing conditions than do unionized firms. States with laws protecting workers from being compelled to join unions saw increases in nonfarm employment of 47% over the past 20 years, double the 21% increase in states with no such worker protection.

With jobs at risk now and personal assets shrinking, people are scared. To enact a bill that is likely to make economic conditions worse would be both foolish and irresponsible.

"Card Check: Good for Unions, Bad for America" - PointOfLaw Columns

By Michael Barone

This piece is copyright Creator's Syndicate and originally appeared 3-21-09.

The Obama administration's budget is full of proposals that threaten to weaken our staggering economy. Higher taxes on high earners and reduced deductions for their charitable contributions and mortgage interests. A cap-and-trade system that will impose higher costs on everyone who uses electricity. A national health insurance program that will take $600 billion or so out of the private-sector economy.

But the most grievous threat to future prosperity may be off-budget -- the inaptly named Employee Free Choice Act. Also known as card check, the legislation would effectively abolish secret ballots in unionization elections. It provides that once a majority of employees had filled out sign-up cards circulated by union organizers, the employer would have to recognize and bargain with the union. And if the two sides didn't reach agreement in a short term, federal arbitrators would impose one. Wages, fringe benefits and work rules would all be imposed by the federal government.

It's not difficult to see why union leaders want this. Union membership has fallen from more than 30 percent of the private-sector workforce in the 1950s to about 8 percent today. Union leaders would like to see that go up. So would most Democratic politicians, since some portion of union dues -- unions try to conceal how much -- goes directly or indirectly to support Democratic candidates. The unions and the Democrats want to put up a tollgate on as much of the private sector as they can, to extract money from consumers of goods and services.

They have already set up such tollgates on much of the public sector. In the 1950s, very few public-sector workers were union members. Today, nearly half of all union members are public-sector employees. In many states and central cities -- think California and New York City -- public-sector unions channel vast flows of money, all of it originating from taxpayers, to themselves and to Democratic politicians. The unions use that money to promote some public policies that are not obviously in the interests of public-sector employees -- restrictive trade regulations, for example, which appeal to nostalgic union leaders who would like to see millions of unionized autoworkers and steelworkers once again.

In the previous Congress, the unions got the Democratic House to pass the card check proposal and got every Democratic senator not only to vote for it but to co-sponsor it, as well. But the votes of all Democrats plus that of Pennsylvania Republican Arlen Specter were not enough then to overcome a Senate filibuster. This year, there is little doubt that Speaker Nancy Pelosi could again jam card check through the House. But moderate Democrats from districts where unions are unpopular have gotten her to spare them a vote until and unless the measure gets through the Senate.

There, its prospects are not so good, now that there is no longer a Republican president to veto it. Card check supporters have a list of 15 Democratic senators who have expressed some manner of unease about the issue. Does Arkansas Sen. Blanche Lincoln, up for re-election in 2010, really want to pass a law strongly opposed by her state's biggest business, Wal-Mart, long a target of union organizers? Do Democratic senators from right-to-work states where employees can't be required to join unions want to go along?

As for Specter, union leaders have publicly said they'll support him if he backs card check. His public response has been to hail the importance of the secret ballot and the undesirability of mandatory arbitration.

Politicians can read numbers. Pollster Scott Rasmussen reported last week that 61 percent of Americans think it's fair to require a secret ballot vote if workers want a union. Only 18 percent disagree. Congressional Democrats used to believe that themselves -- in the course of a trade debate in 2001, they urged that Mexico hold secret ballot unionization elections.

Rasmussen also reported an interesting difference between current union members and non-members. Union members by a 47 percent to 18 percent margin thought most workers want to join a labor union. But non-members believe by a 56 percent to 14 percent margin that most workers don't.

Are non-union members deluded? Why don't they want the supposedly higher wages and job protections unions purport to give them? Maybe it's because the adversarial unionism promoted by the Wagner Act of 1935 is out of date. It made some sense when employers used time-and-motion study to speed up assembly lines and squeeze the last quantum of energy out of workers and could lay off workers at will.

But today's employees have unemployment compensation and are protected by various anti-discrimination laws. There is a whole raft of employment law that didn't exist in 1935, and corporate human resources departments are disciplined by that law.

As the Detroit automakers' troubles show, the adversarial work rules insisted on by the United Auto Workers -- a relatively enlightened union in this area -- made them unable to compete in quality or cost with foreign automakers who employ cooperative management techniques and treat their workers as intelligent partners rather than as dumb animals, the way the time-and-motion study managers did in the 1930s.

Card check would give coercive union organizers the chance to impose on large swaths of the private-sector economy the burdens the UAW imposed on the Detroit automakers. It would set up tollgates to channel the money of consumers as well as taxpayers to the Democratic Party. You can see how that would be good for union leaders and Democrats. But good for America?

EFCA at Point of Law: an index - PointOfLaw Forum

We've been blogging on "card check", the Employee Free Choice Act and related topics for more than two years at this site. As part of our continuing effort to make our archives more useful, here's an index to past posts, updated as of March 31, 2009:

Auto industry Big Three, UAW and decline of, 12-05-2008, 12-13-2008, 12-18-2008

Buffett, businessman/investor Warren, opposes, 03-16-2009

Canada, consequences of pro-unionization laws in, 04-14-2007, 11-24-2008, 02-11-2009

Card acquisition, union tactics in, 02-26-2007, 12-15-2008, 02-11-2009, 03-30-2009
see also Intimidation

Constitution, U.S., and, 11-24-2008, 12-21-2008, 02-11-2009

Contract, imposition of union, by federally installed arbitrator, 10-23-2008, 10-28-2008, 11-18-2008, 11-26-2008, 01-02-2009, 03-02-2009, 03-13-2009, 03-16-2009

Decertification of unions, asymmetrical handling of, compared with original certification, 02-02-2007, 03-02-2009

Do as we say, 09-13-2005, 04-23-2007, 12-07-2008
See also decertification

Epstein, Prof. Richard, on, 11-03-2008, 12-21-2008, 02-11-2009, 03-25-2009

General, 02-26-2007, 10-27-2008, 11-18-2008, 01-06-2009, 01-26-2009, 02-11-2009, 03-12-2009, 03-16-2009, 03-25-2009

Great Britain, experience under Margaret Thatcher and, 10-22-2008

International law, and, 04-02-2008, 02-03-2009, 01-30-2009, 02-06-2009

Intimidation, 01-22-2009, 03-13-2009, 03-16-2009, 03-30-2009
See also sit-ins, factory

McGovern, former Sen. George, opposes, 08-08-2008

Mexico, American pressure for secret union ballot in, 12-05-2008, 03-13-2009

Misnaming of, 02-26-2007, 06-21-2007

Obama, President Barack, and, 11-18-2008, 01-16-2009, 01-20-2009, 01-30-2009, 03-26-2009

Politics of, 10-02-2008, 11-02-2008, 11-05-2008, 11-10-2008, 11-18-2008, 11-20-2008, 12-15-2008, 01-07-2009, 01-16-2009, 01-26-2009, 02-11-2009, 03-16-2009, 03-26-2009, 03-30-2009
See also McGovern, former Senator George; Obama, President Barack; supporters

Sit-ins, factory, 12-09-2008, 12-10-2008, 12-18-2008, 12-22-2008, 01-26-2009, 03-26-2009

States, federalism, preemption, and, 01-10-2009, 02-27-2009

Supporters of: 02-16-2007 (Lindsay Beyerstein; New York Times), 11-18-2008 (NAACP), 12-18-2008 (Natural Resources Defense Council, Sierra Club), 01-06-2009 (Joseph Slater), 02-03-2009 (Human Rights Watch)

Privacy violations, in union organizing, 06-08-2005

"Voter intimidation", outcry over alleged Republican, compared and contrasted, 02-16-2007, 02-26-2007, 11-18-2008, 03-13-2009

Voting vs. card-checking, 02-10-2009, 02-11-2009, 03-16-2009, 03-30-2009
See also Intimidation; Card acquisition

Wal-Mart, and, 07-27-2005, 09-13-2005, 03-16-2009

Will, columnist George, on, 02-26-2007, 06-21-2007

Strassel: "Business Beats Card Check--For Now" - PointOfLaw Forum

  • The "business community managed something it has not managed in years: unity," writes WSJ columnist Kim Strassel. They "successfully turned what had been a dry question of labor law into an emotional, grass-roots issue". But "the real test of corporate America is yet to come ... Business's continued unity, or lack of it, will decide what happens next."
  • Remember the film exhibitor's trick of taking a pan review ("a stunning flop ... amazing it got produced at all") and turning it into a positive-sounding blurb? ("stunning... amazing") The Wall Street Journal discovers that the creative blurbists seem to have moved onto the payroll of Rep. George Miller (D-Calif.) and the SEIU. Earlier blogging by Carter at ShopFloor and again.
  • Despite much arm-twisting from the usual suspects, Calif. Sen. Dianne Feinstein, a former EFCA sponsor, may no longer be counted as a firm "yes" for the bill (via Kaus). It's worth noting that even though unions elected more of their friends to Congress last time around, the card check bill was reintroduced this year with fewer, not more sponsors. Hmmmm.
  • Notes Mickey Kaus: "Intimidation isn't required for the results of a public ballot to diverge from a secret ballot (and from the true choice of the voters). All that's required is a desire not to tell your pro-union buddy to his face that you think he's wrong." Of course that doesn't mean that intimidation isn't also a factor. At an Indiana plant where an employer-neutrality agreement freed the union to use the card-check method, one worker tells on video how it "made her a target": workers agreed to sign cards after unionists showed up at their doorsteps at night, but a secret ballot election told a different story. On which, more from David Freddoso.

EFCA: on to the next round - PointOfLaw Forum

"Prospects dim for labor bill", reports Politico, as Sen. Arlen Specter's withdrawal of formal support for the Employee Free Choice Act confirmed what was already considered likely given jitters among moderate Democrats. Interestingly, the Obama White House was said to be "happy (but very quietly so)" at the fading of the bill's prospects -- a theme that surfaced enough in the coverage to make it seem likely that the White House was knowingly allowing word to be put out to that effect. The Economist pronounces card check "dead for now".

A lot, however, is packed into that phrase "for now". To begin with, if the AFL-CIO is only one or two votes short of the finish line, it might not take much -- a Senator's surprise resignation or medical crisis, a swing in already volatile public opinion about the economic crisis, perhaps a string of plant occupations following the Republic Windows pattern -- to dislodge a vote or two.

For that matter, Specter himself has positioned himself to be a possible 60th vote. Michael Fox notes the Pennsylvania Republican's comment: "If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees' Free Choice legislation when the economy returns to normalcy." (Similarly: Daniel Schwartz). And Fox follows up with an account of Specter's "12 revisions".

So we're very likely going to remain for the indefinite future in a world where union-sought changes to the National Labor Relations Act are not too far from the front burner. Some ideas for compromise that fell flat in recent weeks, such as the "Starbucks skim-milk card-check" idea endorsed by a few businesses with liberal reputations to protect (Starbucks, Whole Foods, Costco) will be brought out for re-examination. Supposedly less controversial elements of labor law reform, such as drastically stiffening penalties for businesses' violations, may be pressed on their own, and will benefit from the postures struck during the card-check debate, in which many EFCA opponents more or less endorsed the penalty provisions so as not to come off as complete rejectionists. Moreover, there may be a tendency to roll over on labor issues not directly related to the NLRA's provisions on unions and their contracts -- on regulation of pay and benefits, OSHA, ERISA, even ergonomics -- on the grounds that the union side has to be given something. Indeed, in the first two months of the Obama administration the union side has already been given more than just a couple of things -- in the form of the Ledbetter act, several executive orders, Davis-Bacon extensions in the stimulus, and so forth. Much more can be expected from the NLRB itself as Obama appointees begin reversing Republican-era precedents.

One problem is that on the rhetorical level, almost everything can be made to sound moderate compared with card check and imposed federal contracts. Peter Kirsanow: "Now that card check may be off the table, EFCA opponents have lost their most effective talking point. ... Senator Specter's announcement merely concludes Round Two."

Carter at ShopFloor, I see, has been thinking along similar lines.

Housekeeping: New categories at Point of Law - PointOfLaw Forum

We've created some new categories at Point of Law to make it easier to find similar posts and use the archives for research. Among those already populated with old posts are:


  • Labor Law has posts on card check and the Employee Free Choice Act and other controversies relating to the legal status of labor unions and the National Labor Relations Act. Wage-and-hour litigation remains for the moment grouped with Employment Law, but at some point will get its own category.
  • Whistleblower/Qui Tam pulls together posts on both employee whistleblowing protections and bounty-hunting qui tam actions under the federal False Claims Act and similar statutes;


Other categories are on the way as well, including Administered Compensation, Preemption, and several more.

Employee Free Choice Act roundup - PointOfLaw Forum

More links on the hottest labor law issue since, oh, maybe the Eisenhower years:

Federally imposed labor arbitrators - PointOfLaw Forum

That might be the most dangerous part of the card check/EFCA bill, contends an Examiner editorial.

"Card Check Workers Can Only Check In" - PointOfLaw Forum

Diana Furchtgott-Roth (Manhattan Institute) on the misnamed Employee Free Choice Act.

The Other Half of EFCA - PointOfLaw Forum

Would the Employee Free Choice Act--the mis-named bill best known for a provision would put an end to secret-ballot voting in union organizing--also empower government bureaucrats to impose the initial contract between a newly recognized union and an employer? No one, explains Slate's Mickey Kaus, seems to know:

The arbitration parts of the card check bill are so vaguely drawn that nobody knows who the arbitrators will be. The job appears to be delegated entirely to the Federal Mediation Service. The FMS might decide to use its own employees. It might decide to use arbitrators from the private sector selected along more traditional lines. The two breakfast debaters (Prof. Richard Epstein and attorney Anthony Segall) did seem to agree that, since thousands of arbitrators might quickly be needed for the expected explosion of mandatory arbitration, it's unlikely they would all be newly hired GS-12s. But they don't know.

But, as Kaus explains, whoever is in charge, mandatory arbitration will inevitably "freez[e] in place hierarchies and job categories both across industries and within individual firms."

Labor-induced stagnation: that's a sure recipe for success.

Commentary's Jennifer Rubin calls the provision "far more extreme" than Roosevelt's National Industrial Recovery Act, which allowed industries to set their own (incumbent-protecting) codes. Unions, she concludes, "would have little reason to agree voluntarily to a deal with management so long as a government arbitrator would be available to ring still more concessions out of the employer."

No surprise, then, that mandatory arbitration is a top labor priority, perhaps even more so than card-check. Opposition to ending secret-ballot elections--or, at least, the fear of the political fallout from doing so--has kept EFCA from moving forward this year, leading some to predict that, with watered-down card-check language, the bill could cruise through Congress this summer, arbitration language intact.

Around the web, February 27 - PointOfLaw Forum

  • Voices of moderation, trial lawyer dept.: Atlanta tort attorney likens Georgia state damages caps to steps taken by Russia's Putin to curb trials of "crimes against state" [Ken Shigley]
  • Prosecution of W.R. Grace execs in wake of environmental offenses against populace of Libby, Mont. is being liveblogged in joint project by U. of Montana law, journalism schools [site via TortsProf]
  • "Study Finds Firms With Market Power Don't Impose One-Sided Terms on Consumers in Software License Agreements" [Consumer Law & Policy Blog, and all credit to them for highlighting research findings that will discomfit some of their co-thinkers]
  • EFCA/card check could have some of its biggest impact in "right-to-work" states [Carter @ ShopFloor]
  • Uh-oh: new push for more lawyer-driven voir dire, easier bouncing of juror prospects "for cause" http://is.gd/hs6p [Anne Reed, a ways back]
  • CPSIA vs. Irish step dance costume makers [Overlawyered]

Around the web, February 20 - PointOfLaw Forum

Around the web, February 18 - PointOfLaw Forum

  • "Plaintiffs Insist Vaccine Court Rulings in Autism Litigation Are Not the End of the Road" [AmericanLawyer.com]
  • Ted Frank: "The TARP Trojan Horse" [American Spectator] Camel's nose unwelcome in tent? "Connecticut Banks Saying No To TARP" [Hartford Business]
  • "'Right to Work' Is No Protection From Card Check" [U.S. Chamber, ChamberPost]
  • What happens in securities arbitration? An overview [SECLaw.com]
  • The plaintiff's bar's case against federal preemption in video form, for those who like that sort of thing [Center for JD/Alliance for Justice]
  • A reminder: you can follow Point of Law on Twitter here, primarily a feed of new posts on the site, but also including some items that haven't appeared in this space.

Employee Free Choice Act roundup - PointOfLaw Forum

This ominous piece of legislation, whose misleading name is not the least of its insults to the body politic, hasn't gone away, even if we've been tending to neglect it lately:


  • Friend of this site and perennial libertarian favorite lawprof Richard Epstein details "The Case Against EFCA" [SSRN]
  • Similar law already in effect in Ontario might foreshadow how card-check could work [Dolan Media] But would Americans be happy trading our current labor-management state of affairs for the very different and far more union-friendly climate that prevails in Canada, where a major university (York U.) has been enduring a staff strike that has shut classes for months? [Western Standard, Doorey]
  • Public polls, on this issue even more than most, are manipulable through the wording of questions; and why is Atlantic's Marc Ambinder taken in by union spin re: workers' "choosing" to dispense with secret ballots? [Michael Fox, Mickey Kaus, Jennifer Rubin]
  • Fourth Circuit opinion cited by SCOTUS in 1969: "It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a 'card check,' unless it were an employer's request for an open show of hands. The one is no more reliable than the other. No thoughtful person has attributed reliability to such card checks."
  • Unions claim workers can still obtain secret ballot if enough of them want it. Funny, cards themselves don't seem to inform them of that option [IBEW, Machinists courtesy Eric B. Meyer]
  • The Hill: "Wary of card-check bill, tech lobbying against it";
  • Some other recent commentaries [Gary Becker and Richard Posner at Becker-Posner Blog; George's Employment Blawg; Mary Rogers and Adin Goldberg of Day Pitney at Metro Corp. Counsel]
  • Finally, Georgetown's Michael Gottesman responds to an earlier Epstein piece (in the WSJ) arguing that EFCA is unconstitutional ("Epstein's imagined constitutional difficulties haven't the remotest chance of gaining judicial acceptance") and Epstein posts a rejoinder.

Because secret ballots are too "divisive" - PointOfLaw Forum

Labor-leaning Democrats' latest argument for card check.

President Obama's executive orders on labor/management - PointOfLaw Forum

President Obama brought labor leaders to the White House again today, following yesterday's signing of the Lilly Ledbetter Fair Pay Act. Today's occasion was the issuing of three executive orders sought by organized labor, as described by CQ Politics:

  • One order requires government contractors to offer jobs to qualified employees when contracts change.
  • Obama also undid a Bush executive order that required employers to post signs informing workers of their right to limit financial support of unions serving as their collective bargaining representatives.
  • A third directive prohibits government contractors from being reimbursed for expenses incurred trying to influence workers on whether to form unions or engage in collective bargaining.

The orders are not online yet at WhiteHouse.gov, but we did get them through a legal colleague and posted them at Shopfloor:

The White House tried to make the big deal of the day its announcement of its Middle Class Task Force headed by Vice President Biden. A task force! Talking about green jobs!

Meanwhile, a search for "card check" or "Employee Free Choice Act" turns up no references at WhiteHouse.gov. So that's good.

UPDATE (6:20 a.m. Saturday): Judging by the metadata of one file, one of the regulations was written by the SEIU's legal counsel, or associate general counsel, Craig Becker -- although he may have gone to work for the Administration. (See this Shopfloor.org post.) Remember all those headlines from eight years ago along the lines of "White House lets business lobbyists write the law?"

Around the web, December 19 - PointOfLaw Forum

  • "If recent jury verdicts are any indication, it is good to be a plaintiffs employment discrimination lawyer these days" [ABA Journal]
  • Marquette lawprof Rick Esenberg on labor costs and the Big Three automakers [Shark and Shepherd first, second, intermission posts, more to come]
  • Judge Chin to Dewey & LeBoeuf: could you explain exactly who all these lawyers are you want to bill out at $605/hr.? (And what's with the extra $5?) [Greenfield]
  • The field of cardiology discriminates against women? Really? [Dr. Wes]
  • Washington Supreme Court rules manufacturers of otherwise nonhazardous component products have no duty to warn about asbestos used in conjunction with their wares [TortsProf]
  • Does "logrolling" count as an environmentalist activity? Sierra Club and Natural Resources Defense Council endorse AFL-CIO's EFCA/card check push [ShopFloor]

EFCA's stalking horse - PointOfLaw Forum

Critics of EFCA have concentrated most of their fire on the bill's abolition of the right to a secret ballot before installing a union. But Michael Maslanka at Texas Lawyer suggests that union and Democratic strategists may be willing to trade off card check and instead accept some less radical alteration to current election procedures, such as snap elections in which employers would have relatively little time to make their case. That would furnish cover for pushing through EFCA's other main provision, the one that hasn't gotten so much attention, which would direct the imposition of an arbitrator-written union contract if the parties failed to reach one after the initial vote. "The unions will put up a fight on the secret ballot but won't really care. ...The gem of EFCA for unions is that they always, always, always get a contract. Sweet." More: Carter @ ShopFloor.

Employee Free Choice Act, the maneuvering - PointOfLaw Forum

The passions, politics and positioning (prattle and palaver, too) involving the Employee Free Choice Act have actually seemed to increase since the November 4th elections. The unions are pushing to place the anti-democratic measure at the top of the Congressional agenda in January, running TV ads, releasing partial polling results, etc. Labor appears to have gotten the upper hand over business, at least with respect to PR.

Anyway, thought a round-up of developments and commentary might be worthwhile:

  • Garry Mathiason, Human Resource Executive Online, "Employment Law: The Shifting Legal Landscape." Mathiason is shareholder, partner and vice chair of Littler Mendelson in San Francisco. He writes: "The 2009 agenda for HR professionals must assume EFCA in some form will become law. In anticipation, employers should consider auditing conditions to determine whether they would support an organizing drive; monitoring union-organizing activities within the industry or geographical location; training management about rules associated with union organizing, potentially providing employees with information and arguments about union representation when organizing activity is anticipated and -- in some highly targeted industries -- even before receiving evidence of organizing activity; and, most of all, reviewing overall employment conditions to ensure they are competitive and the needs of employees are being addressed."

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