Results matching “card check”

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:

"Secret ballots are free choice" - PointOfLaw Forum

Eugene Scalia in the WSJ on EFCA, the misnamed card-check bill:

Never before has it been thought that eliminating the secret ballot reduces voter intimidation. In McIntyre v. Ohio Elections Commission (1995), a case about political pamphleteering, the Supreme Court called the secret ballot the "hard-won right to vote one's conscience without fear of retaliation." Indeed, EFCA'S lead sponsor in the House, Rep. George Miller (D., Calif.), previously joined 15 other colleagues in urging Mexico to recognize that "the secret ballot is absolutely necessary . . . to ensure that workers are not intimidated into voting for a union they might not otherwise choose."

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.

Around the web, February 3 - PointOfLaw Forum

  • Audacious: Stimulus bill would let state AGs file HIPAA damage suits using private contingency-fee lawyers [Chamber ILR]
  • Hemline effect? Periods of intensive empirical research at law schools said to correlate with stock market booms [Prawfsblawg, ConcurOp]
  • If "Human Rights Watch" wants to nose into U.S. domestic labor law, could it at least do so on the right side? [Carter at ShopFloor]
  • Canada said to have too few lawyers, a sentiment open to doubt [Maclean's]
  • Connecticut experiments with group voir dire, Norm Pattis comments [Connecticut Trial Lawyer] Best blogs and feeds about juries, by Anne Reed who is too modest to note that hers is in fact best [Deliberations]
  • Julian Sanchez on Cass Sunstein appointment [Ars Technica; earlier]


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, January 17 - PointOfLaw Forum

  • New Obama interview seems to hint interest in compromise on EFCA [Ambinder/Washington Post] Don't be reassured, says Peter Kirsanow, EFCA is freight train coming down the tracks [NRO "Corner"; Carter at ShopFloor and more]
  • One survey finds U.S. litigation up 9% in 2008; growth areas antitrust, employment, product safety [Law360 Almanac]
  • Difference between viable and nonviable auto industry: maybe not so much union vs. nonunion, but what kind of union? [Kaus; and earlier quoting Clive Crook]
  • Basic discontents with nature of auto accident litigation, especially in big cities, were well established by the 1960s (and in places like NYC, actually, by the 1920s) [Ron Miller recalling Jan. 10, 1964 Time Mag clip] Areas of litigation that have seen revolutionary growth since then are others: product liability (including after car crashes), employment, toxic torts, negligent security, among a great many that could be named, and in many localities med-mal;
  • Tyler Cowen on Obama as centrist: who's going to be happy, and who isn't? [MargRev] More: Althouse/Krauthammer, Joe Weisenthal;
  • Virginia is latest law school to launch (neutral, you think?) center on animal law with $$ from animal rightser/TV guy Bob Barker [ABA Journal, WSJ Law Blog]

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."

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]

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