Results matching “"card check"”

The rest of the story behind Obama's recess appointments - PointOfLaw Columns

Jim Copland

Published on 01/18/12

By now, others have well documented the extraordinary nature of President Obama's appointments to fill the National Labor Relations Board and head the new Consumer Financial Protection Bureau -- purportedly exercising authority under the Constitution's Recess Appointments Clause, but almost certainly acting outside the constitutional provision's scope.

But beyond the constitutional issues, the political and policy implications of the president's action has drawn insufficient attention. The president has, in an election year and without congressional oversight, assumed sweeping and virtually unilateral authority to make policy that will generate windfalls for his two most financially crucial campaign constituencies -- organized labor and the plaintiffs' bar. Just how important are trial lawyers and labor unions to the president's election? In the 2008 election, lawyers and law firms funneled over $45 million into Obama's campaign, more than twice as much as any other industry.

The Service Employees International Union spent over $31 million in independent expenditures to aid the president's campaign -- again, more than twice as much as any other outside group.

The organized plaintiffs' bar and various labor unions constituted a staggering 19 of the top 20 political-action committees' spending on behalf of Democrats in the 2008 campaign, doling out between $1.7 million and $3.2 million each.

Since assuming office, Obama has worked to repay these campaign benefactors. The auto-company bailouts propped up unions by undercutting the clear legal rights of secured debt holders, and much of the "stimulus" spending was designed to protect public-sector unions by shielding them from budget cuts made by strapped state and local governments.

Trial lawyers avoided any serious tort reform in Obamacare, and they got legislation that gutted statutes of limitation for employment-discrimination lawsuits and expanded the scope of private litigation against government contractors.

That said, Congress has frustrated the president's most ambitious plans to help labor and lawyers. Even with large majorities in both houses of Congress, Obama was unable to muster support for the Employee Free Choice Act -- the deceptively labeled "card check" bill that would have allowed unions to form without secret-ballot elections and empowered federal bureaucrats to make sweeping changes to private labor contracts.

Similarly, the most sweeping reform bills on the tort bar's wish list also never came to pass, including legislation designed to make it easier to file baseless claims in federal court; a bill to expand securities litigation by allowing lawyers to sue customers and suppliers for companies' alleged frauds; and a trial-lawyer tax break that would have allowed plaintiffs' lawyers to treat contingency-fee loans as immediate expenses.

With his recess appointments, however, Obama is now in a position to avoid such congressional obstacles and help unions and lawyers through fiat. With three of the five NLRB members slipped into power in the dead of night -- and two of these three were nominated only two days before the Senate's Christmas break, hardly stalled by congressional inaction -- the president's labor-friendly cronies will be well-positioned to make rulings advantageous to unions.

Expect to see more along the lines of the Obama NLRB's extraordinary effort to thwart a Boeing plant's construction in right-to-work South Carolina. As CFPB director, Cordray will be positioned to green-light state tort litigation previously blocked by federal regulation and to "delegate" enforcement to state attorneys general, who in turn will farm out lawsuits to the plaintiffs' bar.

Cordray himself leveraged the Ohio state attorney general's office into a powerful campaign fundraising mechanism, when his election pulled in over $800,000 from out-of-state plaintiffs' law firms and he then hired many of those same firms to sue on the state's behalf.

The president's NLRB and CFPB appointments should be understood not only as an affront to the Constitution's system of checks and balances, but also as an aggressive move to energize his deepest-pocket electoral supporters. Sadly, American law and policy will be the likely casualty of this Chicago-style campaign gambit.


Around the web, February 3 - PointOfLaw Forum

  • "Obama's Stealth Push for Card Check" [Chris Brown, Frum Forum, Bret Jacobson/Roll Call, ShopFloor coverage of yesterday's Craig Becker confirmation hearing]
  • "We're not finished with Toyota," says transportation secretary LaHood [Stoll, earlier; Reuters via Robinette]
  • Powering New England at permanent recession levels? Pollution suit seen as bid to close Salem Harbor coal-fired utility plant [Boston Globe] Opponents seeking immediate closure of Vermont Yankee nuclear plant [WCAX]
  • More on SEC global warming disclosure guidance [Carter at ShopFloor, earlier]
  • "Game-changing day at the SEC": now it can use cooperation agreements and deferred prosecution agreements [FCPA Professor]
  • That's what happens (well, at least sometimes) when you let nonlawyers write legal blogs [Turkewitz]

Around the web, February 1 - PointOfLaw Forum

Around the web, January 18 - PointOfLaw Forum

  • Massachusetts Senate race could give Republicans the added vote they need to block EFCA [Cal Labor Law] New poll shows union members opposing card check [Workforce Fairness Institute via Eric B. Meyer]
  • ObamaCare demonstration projects: "Oregon Seeks $300,000 Tort Reform Grant" [Lund Report]
  • Employers advised to make staff "sign and acknowledge receipt" of not-so-favorable performance reviews [Schwartz]
  • Any and all tactics? Website of Center for Justice and Democracy offers "kudos" for disruption of Detroit Auto Show [Pop Tort]
  • Market for directors' and officers' insurance on the rise in Europe as lawsuit risks mount [Kevin Lacroix]
  • Kirk Hartley of the Global Tort blog, a key stop for coverage of asbestos and bankruptcy issues, is switching law firms.

Around the web, November 14 - PointOfLaw Forum

Canada's Labor Law: An Example for the U.S.? - PointOfLaw Columns

John Endean

What if America's labor law were more like Canada's? Were our Congress to enact into law a more union-friendly legal code of the sort long familiar to our northern neighbors, what sorts of consequences would we expect? At present, 29.4 percent of workers in Canada are represented by unions, as contrasted with 12.4 percent of workers in the U.S. Would adopting a more "Canadian" legal regime close much of that gap, or only a little of it? And what would be the consequences for employee well-being, for managerial efficiency, and for the health of the U.S. economy generally?

These questions are not new ones among those who follow labor policy, but they have taken on fresh interest given the enormous stir in Washington over the proposed Employee Free Choice Act (EFCA). The top legislative priority of organized labor, and potentially the most significant piece of labor legislation since the Wagner Act of 1935, EFCA consists largely if not entirely of policy initiatives that follow a "Canadian" path:

* "Card check". Today, in most cases, installing a union to represent workers at a place of business requires a majority vote of the workers by secret ballot. EFCA's best-known and most controversial provision would require recognition of a union upon its presentation of signatures on union cards from a majority of the workers in a proposed bargaining unit. (1) The card-check system has a long track record in Canada.

* Imposed arbitration of first contracts. Once organization is accomplished, EFCA would compel management to reach a first contract with the new union, by providing for mandatory arbitration and imposition of a contract by a government-appointed arbitrator should negotiations not result in a contract by a certain point. Some Canadian employers both public and private are subject to imposed arbitration at negotiation impasse; in the United States up to now, such requirements have ordinarily been imposed only on some public employers.

* "Quickie" elections. As the unpopularity of eliminating the secret ballot has become clear, organized labor and its supporters have begun to cast around for "compromise" EFCA provisions aimed at bolstering unions' organizing efforts in other ways. One such idea is to speed up greatly, perhaps to 10, 12 or 15 days, the holding of elections following a union petition, which currently in the U.S. are held a median of 39 days later. In Canada, by contrast, there is usually only a five-day window before elections. Shorter periods before a vote are generally considered unfavorable for employers because it gives them little time in which to assemble a case against unionization and make it known to workers; the union, by contrast, will ordinarily have had weeks or months to make its case to workers in private persuasion before it surfaces with its election demand.

Quickie elections, in contrast to card check, are often thought to have "moderate appeal". Thus, William B. Gould IV, an influential legal scholar, former counsel to the United Auto Workers, and former chairman of the National Labor Relations Board (NLRB), supports EFCA in general principle but has criticized card-check and recently proposed quickie elections as part of a "better approach" that might command bipartisan support:

Secret ballots to resolve union representation rights are the way to go, and Obama should meet the Republicans halfway by saying so - and then add this all-important coda: Elections should continue only if the law ensures that voting is conducted expeditiously - for instance, within one or two weeks of the filing for a union's petition seeking recognition. This is the case in Canada, whereas in the United States, the resolution of union drives currently takes months and sometimes years. Quick elections are the key to meaningful reform because delay is the principal way in which labor law stacks the deck against employees. It allows employers to engage in one-sided anti-union campaigns of intimidation and coercion, with little possibility for remedy. (2)

Of all countries that might provide examples for labor law reform, Canada is the most similar to the United States culturally and politically. It is also the most familiar to American managers (many of its firms, especially in the industrial heartland of Ontario, are owned by or affiliated with American corporations, the well-known cross-national integration of Big Three auto manufacturing being only one example.) How relevant is the Canadian labor experience, and what can it teach us about the achievability of EFCA's constituent parts and the costs and benefits they might bring? (3)

Not one but multiple systems. In contrast to our system of labor law in the U.S., in which the federal government occupies most of the field and sharply limits the 50 states' scope for divergence, Canada genuinely shares the regulation of labor relations and union certification between Ottawa and the provinces, with the provinces given the lead. (4) About ten percent of the total Canadian workforce is covered by federal labor law. This includes federal government workers as well as private workers in certain industries deemed national, which include banking, shipping, telecommunications, and inter-provincial trucking.

Canada's federal labor code is a card check system with first-contract mediation and binding arbitration. There are no secret ballot elections. Instead, if more than 50 percent of the workers in a proposed bargaining unit sign cards, the union is certified by the Labour Relations Board. In short, this system does prescribe something a lot like the EFCA's proposed regime for a tenth of the Canadian workforce.

What about the ninety percent of workers not covered by Canada's federal labor law? They are subject to the labor laws of the provinces in which they reside. Up until 1976, all of the provinces used card check. Beginning in that year, however, changing political and economic circumstances have led some provinces to rethink the methods of union selection.

Today, six of the ten provinces - Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, Ontario, and Saskatchewan - require a secret ballot. The four others - Manitoba, New Brunswick, Prince Edward Island, and Quebec - use a card check system. Six provinces also mandate in some form first contract mediation and binding arbitration: British Columbia, Manitoba, Newfoundland, Ontario, Quebec, and Saskatchewan. Overall, of workers in industries covered by provincial labor law, about 68 percent of the Canadian work force lives in provinces with a mandatory secret ballot, and the other 32 percent in provinces with card check.

The numbers fluctuate because card check can be a political football in provincial politics. New Brunswick, for example, first adopted a secret ballot and then reverted to card check as contending political parties succeeded each other in office. Similarly, British Columbia adopted secret ballot elections in 1984, returned to card check in 1993, then readopted the secret ballot in 2001.

There is thus no single "Canadian" model for union organization. If there is a "median" or "most typical" law among the diverging Canadian examples, it is probably the "expedited secret ballot" system that prevails in six provinces including the most populous, Ontario.

Ontario's expedited secret ballot. Ontario switched from card check to a five-day secret ballot certification process in 1995. This change was part of a larger program of tax, budget, and regulatory reforms called the Common Sense Revolution by its architect, Mike Harris, Ontario's conservative Premier.

Upon a showing that 40 percent of the workers in a proposed bargaining unit have signed cards expressing an interest in joining a union, a secret ballot vote must occur within five business days. That's not a lot of time, especially since unions have the initiative in triggering the process and can choose the time and circumstances they consider most favorable. Businesses may not even know an organizing effort is in progress until the union, having secretly obtained the number of signatures necessary to force an election, files its application for certification.

Once a union submits an application, companies must submit a formal response, including a list of relevant employees, to the Labour Relations Board and to the union within two business days. This mandated response can itself be a costly legal scramble and paper chase, and makes it even more likely that managers will be distracted during the few days that will be their only formal chance to make their case on the organization vote.

In that latter task, managers are far more limited by what they can say about the impact of unionization than are their American counterparts, a fact that often comes as a surprise to American companies with Canadian subsidiaries. In one notorious case, for example, from 1996, disgruntled employees of a Wal-Mart operation in Windsor, Ontario, approached the United Steelworkers of America seeking representation. Enough cards were signed to force an election. In the election, however, 79 percent of the employees voted against the union. The Employee Labour Relations Board proceeded to uphold union objections to Wal-Mart's American-style interference with the unionization process. Bizarrely, at least from an American perspective, the Board based its finding in part on Wal-Mart's silence when employees asked if the store would be closed if the unionization drive succeeded. The Board found the company's lack of comment to have had a "chilling effect" upon the union campaign. (5) By way of remedy, it did not (as one might have expected) merely throw out the election results that had gone against the union: it ordered the union installed to represent the workers, majority vote or no.

From a management standpoint, the Ontario system does have some mitigating features. For example, if a union loses an organizing vote, it must wait a year before trying to organize the same company again. The one-year ban applies not only to the losing union but to all other unions as well.

More important, Ontario no longer imposes mandatory arbitration automatically if a company and union cannot agree on a first contract. The 1995 legislation that supplanted card check with the five-day vote also modified the then-existing mandatory arbitration provision by putting in place a four-part test for evaluating first contract negotiations. This four-part test comes close to a bad-faith bargaining hurdle. In effect, if a company can show that it is bargaining with the union in good faith, it can avoid mandatory arbitration.

Accustomed as they are to campaign periods of about a month before an organizing election, most American managers would likely regard the Ontario secret ballot system, with its abbreviated, five-day campaign period, as a thumb on the scale in favor of union organization. According to a labor lawyer in Canada interviewed for this note, Ontario managers are not in revolt against the five-day system because "you get used to it." The possibility of quick organization becomes just one more "crisis management" issue, with all the transaction costs that crises inevitably entail.

Union "density" and the legal background. Union density - the percentage of total workers who belong to unions - is greater in Canada than in the United States. According to Statistics Canada, about 29.4 percent of all Canadian workers belong to unions. In the United States, the equivalent figure is about 12.4 percent.

In both countries there is a sharp disparity between union density in the public and private sectors. In Canada, 71 percent of public sector workers belong to unions, while only about 16 percent of workers in the private sector are organized. A similar ratio prevails, but at lower rates, in the United States, where union density is about 39 percent in the public sector and 7.6 percent in the private. The comparatively robust presence of unions in the public sectors of both countries reflects the disinclination of government managers to contest unionization, in part because the costs of organization - higher wages, expensive benefits, and restrictive work rules - are indirectly spread among the public at large. (6) It is also worth noting that the public sector employs a significantly higher percentage of the workforce in Canada than it does in the United States.

No one factor explains the overall density "gap" between Canada and the United States. Unquestionably card check has facilitated unionization north of the border, which tends to confirm the feeling of labor leaders in the United States that it would prove helpful to them here. (7) One often-quoted study, by Professor Susan J.T. Johnson of Wilfrid Laurier University, estimated that the greater use of card check in Canada accounts for somewhere between 17 to 24 percent of the difference in union density between Canada and the United States. (8)

Available evidence suggests that the adoption in some provinces of a secret ballot, even when accompanied by a relatively brief campaign period, has made organization more difficult. Perhaps the most striking example is in New Brunswick where the success rate of union organizing fell 19 percent when the secret ballot was put into place and rose by about the same amount when the card check regime was later restored. (9) A study of organization in Ontario found that "the overall proportion of successful certification applications [was] substantially lower under the mandatory vote than it had been under the card-check system." (10)

Note that there is surprisingly little backing for the sometimes-heard assumption that Canada (in supposed contrast with the U.S.) is a country where unionism is simply uncontroversial and popular with the broad populace. With a favorable legal framework in place for many years, a union movement that represents only 16 percent of private sector workers cannot exactly claim a decisive mandate from the Canadian working public. The Canadian experience following many provinces' introduction of secret ballot elections also suggests that when workers are allowed to vote on whether to join a union - when, in other words, they regard joining a union as a matter of individual choice in which competing considerations are brought to their attention - they are measurably less inclined to join. This is a difficult point for unions to accept.

The flagging spirit of Canadian unionism. Unionism in Canada's public sector appears for the moment to be secure. But only the growth in public sector unionization has kept Canada's overall density rate near 30 percent; Canadian private sector unions are struggling, by contrast, with what growth there has been in union membership outstripped by the greater proliferation of nonunion jobs. Pradeep Kumar of Queen's University, a sympathetic observer of the Canadian labor movement, has argued that in general "the data appear to portray a picture of a stagnant labour movement with declining density in a wide range of areas, particularly in private service industries with expanding employment, and with a false sense of security due to continuing union strength in the public sector." (11)

Even the most visible instance of new private unionization in recent years is indicative of this weakness. The giant auto-parts supplier Magna International, which had long resisted unionization, reached a 2007 agreement with the Canadian Auto Workers (CAW): in order to achieve this long-sought goal, however, the CAW gave up the right to strike, amended its grievance procedures, and permitted the company to screen candidates for union representative - so-called "employee advocates" -- at each plant before they are ratified by employee vote.

Some in Canada's labor movement are preoccupied with the hope of turning around this trend by prevailing on provincial governments to restore card check. (12) New Brunswick aside, they have had scant success. When the Liberals returned to power in Ontario in 2003, there were rumblings about restoring card check across the board. That did not happen, and instead the old system was restored in 2005 only for workers in construction workers (a move, oddly enough, condemned as "sexist" and an "atrocity" by one union because the construction industry has "a predominantly male workforce"). (13) Although Canadians are famously prickly about their social and cultural independence from the United States, it is probably true that the best boost for a return to card check in Ontario and other provinces would be the adoption of card check by the United States, Canada's largest trading partner.

In this context, calls for a return to card check may be a distraction from the more important matter of making union membership relevant for a new generation of Canadians who may not see belonging to a union as self-evidently desirable. Perhaps there is a lesson here for American labor unions as well.

FOOTNOTES

(1) In the first half of 2008, the union win rate in NLRB private sector elections was 66.8 percent. This win rate has been tracking upward, with one exception, for the last five years. In 2003 the union win rate was 58.3 percent; in 2004, 58.6 percent; in 2005, 61.3 percent; in 2006, 61.4 percent; and in 2007, 60.5 percent. See "Union Win Rate in NLRB Elections Increased Substantially in First Half 2008," BNA Daily Labor Report, 217 DLR, January 28, 2009, pp. C-1 - C-2.

(2) William B. Gould, IV, "How Obama Could Fix Labor Law," Slate, August 28, 2008.

(3) Recently three American companies sympathetic to labor law reform - Costco, Starbucks, and Whole Foods - formed an organization called the "Committee for a Level Playing Field for Union Elections." The Committee has as its centerpiece the maintenance of secret ballot elections with a shortened campaign period, along the lines of what Gould identifies as the Canadian model.

(4) Before 1925, collective bargaining legislation was the responsibility of Canada's federal government. In 1925, the United Kingdom Privy Council, in Toronto Electric Commissioners v. Snider established priority of provincial rather than federal jurisdiction over most labor and employment issues. Subsequently, the Constitution Act of 1867 delineated the separation of powers between the federal and provincial governments.

(5) See Douglas Gilbert and Brian Burkett, "Canada's Labor and Employment Laws," June 2001. Gilbert and Burkett are Canadian management-side labor lawyers and their piece can be found at http://www.shrm.org/nahrma/canada.asp

(6) In addition, government employment is by nature fairly static and captive in the sense that it cannot be "offshored." Unlike private sector workers, government employees are not buffeted by the pressures of international competition, mergers and acquisitions, technological change, or bankruptcy. Organizing government workers and bringing new members on board is thus fairly routinized and predictable. It is, in other words, easier.

(7) In addition, unlike the United States, Canada permits mandatory union membership in collective agreements as a condition of employment. And in contrast to so-called "right-to-work" states in the U.S., Canada also permits mandatory dues payments, again as a condition of employment. Jason Clements, Niels Veldhuis, and Amela Karabegovic, "Explaining Canada's High Unionization Rates, Fraser Alert, August 2005. This piece can be found at: http://www.fraserinstitute.org/researchandpublications/publications/3086.aspx

(8) Susan Johnson, "The Impact of Mandatory Votes on the Canada-U.S. Union Density Gap: A Note," 43 Indus.Rel. 356 (2004), quoted in Anne Layne-Farrar, "An Empirical Assessment of the Employee Free Choice Act: The Economic Implications," The Alliance to Save Main Street Jobs, March 3, 2009, p. 16.

(9) Chris Riddell, "Union Certification Success Under Voting Versus Card-Check Procedures: Evidence from British Columbia, 1978 - 1998," Canadian Journal of Economics, vol. 34, no. 2, quoted in Jason Clements, Niels Veldhuis, and Amela Karabegovic, "Explaining Canada's High Unionization Rates," Fraser Alert, op. cit.

(10) Sara Slinn, "The Effect of Compulsory Certification Votes on Certification Applications in Ontario: An Empirical Analysis," Canadian Labour and Employment Law Journal, vol. 10, no. 3.

(11) Pradeep Kumar, "Whither Unionism: Current State and Future Prospects of Union Renewal in Canada," June 2008, available online at: www.opseu.org/committees/equity/PradeepKumarWhitherUnionism.pdf. See also Pradeep Kumar, "is the Movement at a Standstill?", Our Times, vol. 27, issue 5, October-November, 2008.

(12) See, e.g., Bruce Allen, "On and After the Magna Vote," New Socialist, www.newsocialist.org/index.php?id=1485. See also, Mine Mill598/CAW Organizing Report, April 27, 2005, www.minemill598.com/community-based-organizing/organizing-report.html

(13) The "sexist" and "atrocity" language can be found in a draft advocacy letter to members of the Canadian Parliament that is included in the "Labour Law Reform - Lobby Kit" created in 2005 by the United Steelworkers District 6. Available at: www.usw.ca/program/adminlinks/docs//LLR_Kit.pdf.



* * *

John Endean is the president of the American Business Conference, a Washington, D.C.-based coalition of leaders of midsize growth companies. This paper, original to Point of Law, was commissioned by the Manhattan Institute as the first in a planned series of Institute papers on labor policy. It was published November 9, 2009.

* * *



"Tuesday's Biggest Loser: the Union Agenda" - PointOfLaw Forum

Michael Barone in the WSJ:

The unions' unprecedented political push in 2008 has not been unnoticed by the voters. Mr. Corzine's cozy relationship with public employee union heads proved a liability in New Jersey, and in Virginia Mr. McDonnell campaigned hard against card check and the Obama agenda. The Gallup organization reports that Americans are less pro-union than they have been at any time since it first started asking the question in 1936. Maybe around the country union members will start asking their leaders what they have gotten for all the money they've spent on politics.

Earlier, and similarly: Carter at ShopFloor.

Around the web, September 30 - PointOfLaw Forum

  • Indiana: "Lawyers file challenge to end state's malpractice cap" [Indianapolis Star, Shelby News]
  • "Sears Roebuck Agrees to Record $6.2M ADA Settlement With EEOC" [ABA Journal] And a flurry of litigation activity: "EEOC announces 32 suits in past seven days" [Runkel via Fox]
  • Judge nixes class action against Toshiba over its defense of HD-DVD format [Russell Jackson]
  • Card check in lieu of union-representation elections has a track record in New York public employment [Bill Herbert, SSRN via Workplace Prof]
  • "Up Next: Securities Suits Against Municipalities?" [LaCroix]
  • Accusations fly in Neurontin litigation between Pfizer lawyers and David Egilman, Mark Lanier [American Lawyer]

Around the web, September 9 - PointOfLaw Forum

  • Steven Shavell and Mitchell Polinsky, "The Uneasy Case for Product Liability" [SSRN via TortsProf]
  • Distinguished alum now at odds with Gerry Spence's Trial Lawyer College [Norm Pattis, Greenfield]
  • Victory for sound policy: City of Milwaukee drops its public nuisance product liability case against Sherwin-Williams over lead paint residues [Genova]
  • Could the newly constituted NLRB order employers to recognize unions formed by card check even if the idea fails to pass Congress? [Mark Schoeff Jr., Workforce Management via ShopFloor; latest on measure]
  • Now before Supreme Court: Graham County v. United States ex rel. Wilson case might help rein in qui tam "whistleblower" actions that piggyback on official reports and investigations [amicus brief, PDF, and more from WLF, plaintiff's view from Labovick]
  • "Ten Things I Hate About Health Care Reform" [cardiologist/administrator Arthur M. Feldman, Washington Post via Althouse; #2 is the omission of you-know-what]

Around the web, September 2 - PointOfLaw Forum

"Card check comes to campus" - PointOfLaw Forum

Pro-union legislation passed by the Wisconsin legislature and signed by Gov. Jim Doyle sweeps 3,200 research assistants at the state university into what proponents anticipate will be a card-check system of unionization. In addition, unions are pushing for something called "unit clarification" which if successful could corral thousands of university employees into collective bargaining just by redefining the scope of bargaining units. Donald Downs of UW-Madison explains in a post for the Manhattan Institute's Minding the Campus.

EFCA "compromise", the latest round - PointOfLaw Forum

Since the card-check element of the Employee Free Choice Act has been politically dead for months, and talk of fallback "compromise" pro-union legislation has been going on for just as long, it's far from clear why Thursday's New York Times gave prime billing to a report by Steven Greenhouse which presented the backtracking and attempted reformulation of the bill as if it were something exciting and novel. Especially since still part of the bill, apparently for now at least, is the equally radical imposed-arbitration scheme (critique: Shikha Dalmia in the WSJ) which Mickey Kaus proposes to call "federal pay determination" for short, and which, as Carter at ShopFloor notes, most business-side advocates view as utterly unacceptable under any circumstances.

Carter suggests that the underlying stratagem at work here may resemble a two-stage booster rocket: with card-check gone, labor and Democrats can later pose as reasonable by jettisoning arbitration as well in favor of a bill with just the other, supposedly miscellaneous provisions such as heightened employer penalties (to "bludgeon employers into submission", as he has put it). Among the miscellaneous provisions, as Michael Fox notes: quickie elections, perhaps as fast as 5 days, and "equal access provisions to allow unions to campaign on an employer's premises".

The miscellaneous provisions are probably the biggest political danger to bill opponents. Both card check and compulsory arbitration are relatively easily grasped as drastic changes in the existing labor-law regime for private workplaces, and both can be effectively criticized as curtailing worker choice (arbitration would impose new working conditions not just without management's consent, but also without a vote by workers). On the other hand, proposals that can be presented as merely increasing penalties for violations tend to go down easy in our system, and many of the other ideas can be couched as if there were incremental adjustments in things like the speed or logistics of elections -- even if their cumulative effect might prove drastic.

P.S. Jon Hyman at Ohio Employer's Law has a further roundup of blog reactions.

"The Impact of Card Check on the U.S. Economy" - PointOfLaw Forum

A lunchtime event on Capitol Hill next Tuesday sponsored by AEI, with UCLA economist Lee Ohanian [details]

EFCA and union pension plans - PointOfLaw Forum

Among the unstable aspects of the current labor scene: many union-sponsored pension plans (so-called "multiemployer" plans, paid into by many employers in a unionized industry) are badly underwater, seriously short of the assets they need to pay promised pensions. The hope in some quarters is that a rush of new union organization made possible by EFCA will stabllize these plans by adding many new employer-contributors. For any particular employer facing an organizing drive, however, the prospect is unsettling at best: a successful "card check" signup (followed if necessary by a federally selected arbitrator's imposition of a first union contract) will require the company to start contributing not only on behalf of its own workers, but also to cover the shortfalls left by other employers, including some that are departed or defunct. Manhattan Institute fellow Diana Furchtgott-Roth explains at Real Clear Politics. More: ShopFloor and followup, CEI "Open Market".

Dressing up EFCA for another try - PointOfLaw Forum

Peter Kirsanow, NRO "Corner":

...One would think that any discussions concerning an EFCA "compromise" would include those senators who voted against EFCA the last time it was introduced, but it appears only those who supported EFCA are involved in the negotiations. ...

To overcome the unpopularity of card check and its abridgement of the secret ballot, Kirsanow says one idea being floated is that of mail-in ballots, but, he says, "mail ballots retain many of the same infirmities as card check". Jennifer Rubin warns against "an innocuous sounding compromise that will permanently tip the scales in favor of increased unionization."

Michael Barone on mandatory arbitration - PointOfLaw Forum

"The card check bill's mandatory arbitration provisions are a recipe for doing to very large parts of the private sector what the UAW did to GM, Ford and Chrysler," the columnist writes. His earlier column on EFCA is here. More on the imposed-arbitration provisions: James Sherk, Heritage.

EFCA : new footwork needed - PointOfLaw Forum

Jennifer Rubin at Commentary wonders whether opponents of the now-stymied Employee Free Choice Act are prepared for a second battle of "EFCA-lite" proposals that would aim at strengthening union organization without either card check or compulsorily imposed federal contracts. Such preparation, she argues, might call for one of two strategies: a "bipartisan/balanced" approach that would grant some of the requested new powers to unions in exchange for greater transparency and accountability on unions' part; and a more fundamental challenge which would involve trying to show that EFCA is unneeded in the first place and that there is neither crisis nor unfairness in the current set of rules unions must follow in their efforts to organize.

Union organizing vs. employee privacy - PointOfLaw Forum

Cincinnati Enquirer columnist Peter Bronson notes (h/t ShopFloor) that in a Pennsylvania organizing campaign, the UNITE HERE union invaded workers' privacy "by illegally using license plates to track them down... just a taste of what non-union workers will face if the Senate passes 'card check'". In many cases the unions obtained identities of the workers' family members and friends as well. The campaign included uninvited appearances at the homes of Cintas employees. Earlier this month the U.S. Supreme Court declined to disturb a verdict against the union over the tactics.

Taft-Hartley and the secret ballot - PointOfLaw Forum

A bit of relevant background for the card check debate from Hans von Spakovsky:

The provisions for secret ballots in union representation elections are outlined in Section 9 of the National Labor Relations Act, codified at 29 U.S.C. 159 and first passed in 1935. The original language stated that the National Labor Relations Board (NLRB) could provide for "a secret ballot of employees, or utilize any other suitable method to ascertin [sic] such representatives."

This provision was amended by the Taft-Hartley Act of 1947 to delete the "other suitable method" language after Congress found that "the American workingman...has been cajoled, coerced, intimidated, and on many occasions beaten up, in the name of the splendid aims set forth in section 1 of the National Labor Relations Act."

Good thing that would never happen now!

P.S. Some more on the history of Taft-Hartley, from historian John Steele Gordon.

"Good" arbitration vs. "bad" arbitration? - PointOfLaw Forum

Jim Copland in the Washington Examiner:

The bill specifies that if management and labor were unable to agree to a contract after 120 days, the government's arbitrators would step in and mandate labor terms under "contracts" that would be binding for two years. ... The arbitrators' decision would be final, with no possibility for judicial review.

Card Check places no limits on the Labor Department's discretion, so nothing prevents the mandates drawn up by arbitrators from deviating far and wide: Business might be barred from outsourcing processes or from merging with other companies, and they might be compelled to support "community" groups or meet "green" targets. The difficulties in government involvement in business decisions, made obvious in the financial- and auto-industry bailouts, would be magnified throughout the private economy.

Lest one think that the Democrats backing Card Check are favorably disposed to arbitration in general, realize that another of their top legislative priorities - at the behest of a different special interest, the trial lawyers - is to gut the Federal Arbitration Act to prevent consumer arbitration.

The same legislative leaders, then, are supporting legal changes that would prohibit businesses and consumers from agreeing to arbitrate their disputes but would require businesses and labor to submit to arbitrators' decisions.

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