Results matching “"card check"”

Around the web, November 18 - PointOfLaw Forum

  • All-purpose public contingency fee lawyers? Already representing Bay Area's San Mateo County to go after former lead-paint makers, Cotchett Pitre has now gotten itself hired to pursue financial claims in Lehman Brothers failure [NLJ]
  • Theodore Dalrymple reviews Paul Offit's new book on autism and anti-vaccine crankery [City Journal]
  • Judge Acker issues broad ruling against Rigsby sisters, the ones who funneled State Farm Katrina documents to Scruggs informants, in Renfroe contract dispute [Memorandum Opinion PDF, YallPolitics]
  • Adopting views of Third Restatement would be step in the right direction for Pennsylvania product liability [Stephen Fogdall (Schnader Harrison) for WLF, PDF]
  • At Drum Major Institute discussion on shareholder "say on pay", sounds as if panelists march to same drum [Hodak Value]
  • On card check/labor law reform, Obama memoir is ominous: "I owe those unions. When their leaders call, I do my best to call them back right away." [EFCA Updates]

A Labor Dilemma For President Bam - PointOfLaw Columns

By Richard A. Epstein

This piece was originally published by the New York Post, 10-21-08.

THE financial crisis has unfortunately deflected attention from our next major meltdown: ordinary labor markets. The early days of an Obama administration will likely see passage of the so-called Employer Free Choice Act—which will put a union noose around the neck of every US business, large and small.

Union membership has dropped relentlessly from about 35 percent of the PRIVATE work force in 1954 to about 8 percent today. The main factor is the massive attrition in failed unionized industries such as steel, automobiles and rubber. A chorus of labor advocates falsely attributes this collapse to management's alleged unfair labor practices of management in union elections, about half of which labor wins anyway.

The true explanation lies in a simple fact: Unions are a bad deal for most workers. They get some added bargaining leverage, but pay heavy dues, give up prospects for advancement in the firm and face higher odds of layoffs by hamstrung employers who can't compete in ever-more competitive global markets.

The false diagnosis leads to the bill's two-part "cure" to the nonexistent problem:

* It eliminates the need for a union to win an actual election to become the workers' representative. Instead, gaining a simple majority of the targeted work force—in the form of signatures on cards—would make the union the official bargaining agent for all workers, including those who had no knowledge of the union's activities.

* Worse still, the act lets a government-created arbitration panel impose the first two-year contract over the employer's objections if the two sides don't reach agreement within 130 days after union certification.

Barack Obama is a strong supporter of this effort to turn all US workers into civil-service employees. But he never admits how the law would wreck the small businesses he has sworn to promote.

EFCA allows aggressive unions like the Service Employees International Union to pick their targets and ambush them. E.g.: Imagine a new firm preoccupied with product development, credit arrangements, inventory control and marketing—suddenly approached with this chilling message: "Our signed cards let us represent for two years all your employees, including future hires."

The hard-pressed employer has to hire immediately professional legal counsel to steer it through a legal thicket that could end in work rules and layoff restrictions that make liquidation or bankruptcy the firm's only viable alternatives.

Why bother to go into business at all—if a few card checks, even when obtained by intimidation or misrepresentation, can make a union your involuntary partner at the most vulnerable time of your business?

The unions pooh-pooh these objections by claiming that card checks and compulsory arbitration work for public unions. Not so. The only sense in which these arrangements "work" is to substitute surrender for strikes.

In fact, mandatory arbitration dooms many public employers to offering the same wretched or overpaid service in the future that they have offered in the past. Innovation is out of the question, because a dominant union can veto any intelligent structural or wage reform.

And private businesses don't operate the same kinds of protected niches as public unions—they face real competition. The employer groups that I've represented know full well any private firm that succumbs to unionization won't be strong enough to survive adversity or nimble enough to advance. Yet EFCA would enable labor unions to muscle their way into an involuntary partnership with the firm's owners.

So a future President Obama will face a hard choice: Show abject fealty to the labor unions, which have done so much to promote his candidacy. Or avoid decimating the small businesses he has promised to help.

With the economy wobbly, we don't need a massive government intervention to disrupt the balance between management and labor.

Richard A. Epstein is a professor of law at the University of Chicago, a visiting professor at NYU Law School and a Manhattan Institute adjunct fellow.

'Free choice' versus binding arbitration - PointOfLaw Forum

Peter Kirsanow, a Cleveland attorney and member of the U.S. Commission on Civil Rights, has turned his attention recently to the Employee Free Choice Act, the legislation that would allow labor organizers to dragoon employees into a union bargaining unit via public collection of signature cards, eliminating a secret-ballot election supervised by the National Labor Relations Board.

In several posts at National Review's The Corner (one previously noted by Walter), Kirsanow focuses on the binding arbitration provisions of the law, which until recently have received much less scrutiny then the "card check" provisions. In short, if a new bargaining unit and employer cannot reach a first contract after 120 days, a federal arbitrator will impose contract terms on them for two years. Sometimes you can't even agree on the size of the negotiating table in that period of time, Kirsanow notes from his own experience. And is it really a contract?

Under EFCA, the terms set by the arbitrator will be the furthest thing from a "contract." It won't be an agreement between management and labor. Rather, wages, hours and terms and conditions of employment will be dictated by a government appointed arbitrator. The mandate will be binding on the parties for two years. Neither the company nor the employees can reject it...

Currently, if employees don't like the tentative agreement negotiated between union leaders and management the employees can vote it down and instruct their leaders to go back to the bargaining table to get a better deal. Not so under EFCA. If the employees don't like the arbitrator's decree of a 2% wage increase, they're stuck. Similarly, if the company can't afford the arbitrator's command to pyramid overtime, the company's stuck. The consequences aren't difficult to imagine.


Right. Imagine being in an industry where five or six businesses are engaged in fierce price competition, and where labor decides to organize you first. An arbitrator's terms could kill your operation altogether.

Kirsanow's posts, which also include some illuminating comparisons to Canadian employment law:

Law firms with major employment law practices have recently released analyses of the labor-backed Employee Free Choice Act, providing good info to their clients and the public prior to Election Day. We assume the preliminary publishing also sets a foundation for pitching an EFCA-specific practice if a Democratic Congress passes and a President Obama signs the card check bill.

May that day never come.

Anyway, here are some of the analyses that have crossed our screen.

Around the web, October 24 - PointOfLaw Forum

  • If you think the card check provisions in EFCA are outrageous, wait till you hear about the mandatory arbitration [Kirsanow, NRO Corner]
  • "Prohibition of Excessive Overtime in Health Care Act will Exacerbate Nursing Shortage" [Pennsylvania Labor and Employment Blog]
  • Suppose plaintiffs win Wyeth v. Levine and Vermont juries can second-guess FDA on medication's labeling for IV use. What then? [ER Stories]
  • Other pre-emption issues are bustin' out all over [Beck & Herrmann (U.S. Supreme Court, food regulation), NLJ (NHTSA, seat belts), Mundy/WSJ, Carter/ABA Journal (various federal agencies), Cal Biz Lit (autos, California court of appeal)]
  • Must be those awful deregulators at work: workplace injuries decline for sixth consecutive year [Henke, Next Right via Friedersdorf]
  • Emergence of Delaware as favored asbestos plaintiff's forum could dull the state's edge in corporate law, gee thanks Senator Biden [Bainbridge, WSJ edit, SE Texas Record]
  • Annulling credit default swaps as void: could this be Ben Stein's worst idea yet? [Salmon]

Card check and an Obama Administration - PointOfLaw Forum

Could, or would, Republican senators filibuster to block the scheme and thus preserve the secret union ballot? (scroll)(earlier).

Around the web, September 11 - PointOfLaw Forum

  • "Eight counties in New York State have no obstetricians: Essex, Greene, Seneca, Tioga, Washington, Yates, Schoharie, and Hamilton" [Barringer/Berkowitz, NY Sun via Common Good; more]
  • Card check proposal to dispense with union secret ballot might just be the most important domestic issue at stake in November's election [Rubin, Pajamas Media]
  • "A look at [AG and gubernatorial candidate Jay] Nixon's big-money donors starts and ends with Missouri's big-name lawyers, specifically personal injury attorneys." [St. Louis Post-Dispatch]
  • "Market doesn't work for EULAs". But in the case of Google Chrome maybe it did [Szoka, TechLiberation]
  • Early bird registration about to expire on U.S. Chamber's Legal Reform Summit, set for Oct. 29 in Washington [more]
  • Self-regulation effort by third-party litigation funders in the U.K. [Legal Week]
  • Short on cash? Earn money by blogging for trial lawyer causes [Tort Deform]

McGovern on card check - PointOfLaw Forum

A well known Democrat warns against doing away with the secret ballot so as to make it easier to install unions at the workplace. More on card check here.

Around the web, May 13 - PointOfLaw Forum

George Will on card check - PointOfLaw Forum

On the "Orwellian-titled" Employee Free Choice Act, which would abolish employees' rights to a secret ballot on whether or not to accept union representation:

Failing unions, like failing industries, turn to government for protection in the form of coercion. Failing industries have traditionally sought corporate welfare in the form of tariffs (coercion of consumers). Unions seek laws to confer what their persuasiveness cannot convince people to consent to.

"Card check" in Canada - PointOfLaw Forum

Some of the proposals now popular in Congress for promoting workplace unionization (and cutting down on those pesky secret ballots with their potential for union defeats) have been in effect in Canada for many years. For a glimpse at some of the results, check out this website ("Free the Lively Seven"). Earlier: here, here and here.

"Voter intimidation" and card checks - PointOfLaw Forum

Dan McLaughlin on Congress's rush to repeal the secret-ballot precondition for compulsory union recognition in the workplace:

Republicans, for some time now, have been pushing for fairly tame measures to prevent voter fraud, most of which revolve around requiring voters to show some form of identification and otherwise leave a record that enables a determination of who, precisely, voted. In response to these common-sense proposals and other efforts to assure the integrity of the ballot, Democrats invariably complain that Republicans are engaging in some form of voter intimidation. Apparently, according to Democrats, even the mere act of having to properly identify yourself is so intimidating as to inhibit the right to vote.

Well. Now that the Democrats are in the majority, they are hard at work on legislation in another election context that will go far beyond mere identification, and eliminate secret ballots entirely, allowing voters to be pressured, even by their co-workers and in their own homes, to vote a specific way....

Remember this: any Democrat who votes in favor of a "card check" system, in which union organizers are looking right over the voter's shoulder, should absolutely never be taken seriously again in arguing that far less intrusive efforts to simply identify voters who cast secret ballots in the privacy of a voting booth is somehow "voter intimidation."

On Wednesday the House Education and Labor Committee approved the card-check bill on a party-line vote. Earlier: Feb. 2.

Update Mar. 18: blog coverage of the issue includes Mickey Kaus and Megan McArdle (critical of bill), Lindsay Beyerstein at Majikthise (all for it, who needs secret ballots anyway?), and Union-Free Employer (picking apart a particularly ill-considered, even for that newspaper, editorial). See also Tresa Baldas's coverage in the NLJ.

Card check for me, but not for thee - PointOfLaw Forum

The mislabeled "Employee Free Choice Act" would do away with secret ballot elections in union certifications, instead installing unions as exclusive representatives once they proffer a majority of authorization cards signed by workers individually in settings where a 250-lb. Teamster may be looking over their shoulders ("You got a problem with that?") Comments Larry Lindsey in the W$J:

The final proof that this bill is about union power, and not worker choice, is revealed by its treatment of the flip side of unionization: decertification elections. These are secret ballot elections in which workers get to decide that they have had enough of the union. So under the Employee Free Choice Act can a majority of workers decertify the union by signing a card? Not on your life. Here unions want the chance to engage in a campaign to give workers both sides of the story -- and maybe do a better job of representing them -- before the union's fate is decided, by a secret-ballot vote.

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