LaborPains.org

While other folks might be wrapped up in discussing other constitutional matters today, union members and employers alike should still be concerned about President Obama’s “recess” appointments to the National Labor Relations Board.

In January, while the Senate was holding pro-forma sessions in order to keep the Congress out of recess, Obama appointed three new members to the NLRB without getting the consent of the Senate, as is required by the Constitution.

As legal experts have explained, including former Attorney General Ed Meese, there must be a formal resolution for the Senate to actually recess.

Attorney Andrew Grossman noted that even President Obama considered this to be an active session of Congress, because he signed the payroll tax cut extension into law—a bill approved while the pro forma session was in place.

Nontheless, Senate Majority Leader Harry Reid (D-NV) has threatened to allow more appointments to go through this same unconstitutional process.

But if you’ve grown weary of hearing legal jargon, there’s always just the plain old practical reasons why skipping the Senate confirmation process is a bad idea. As Fred Wszolek of the Workforce Fairness Institute (WFI) says in today’s Washington Examiner, the illegal appointees really should have been properly vetted.

One illegal appointee, Richard Griffin, was an attorney for the International Union of Operating Engineers—a union with dozens of members that have faced criminal charges that include labor racketeering, extortion and bodily harm.

As reported by the Heritage Foundation’s investigative reporter Lachlan Markay, Griffin will also continue to receive a pension from the IUOE while he sits on the NLRB, and may very well hear cases brought by his former employer.

More important than the individual members, however, is the harm that these appointments will inflict on workers and on the American economy. Wszolek writes:

The NLRB is supposed to be independent, but it has become anything but that under President Obama.  The White House has used the NLRB to reward its largest political contributor making little effort to disguise this as anything outside “payback” to Big Labor.

Though union leaders and politicians might not care, the illegal NLRB appointments have harmed the Constitution and are already negatively affecting our already-faltering economy.

Do you deserve a raise?

If you’re in a union, good luck getting one. Chances are your union contract is one of the 80 percent that do not allow individual workers to receive merit-based pay increases.

That problem could have been solved with the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act, sponsored by Sen. Marco Rubio (R-FL) and Rep. Todd Rokita (R–IN) in their respective houses of Congress.

As Sen. Rubio explains, the RAISE Act would have eliminated the pay ceiling on employees working under a collective bargaining agreement. That is, employees who outperformed others would be rewarded for their work with pay increases, as determined by their employer on an employee-by-employee basis. The RAISE Act would not affect the pay floor—the lowest that any employee can be paid. That’d be left to the union negotiation.

James Sherk at the Heritage Foundation demonstrates that there are almost 8 million workers subject to these restrictions. The numbers show that when individual pay raises are permitted, workers make six to ten percent more.

Unfortunately, the bill went down to defeat in the U.S. Senate with only 45 Republicans supporting the bill. Millions of workers will still be stuck with pay ceilings.

But to union leaders, that means little. Michael Franc notes at the National Review Online the absurd opinion of the Teamsters’ Jimmy Hoffa, Jr.  Hoffa stokes the flames of fear by claiming that there would be “favoritism” and “arbitrary action” by employers if individual, rather than collective raises, were permitted.

Hoffa’s theories sound outrageous to anyone working at a non-union shop. Employers have little incentive to offer “arbitrary” raises, but instead reward those who have performed at a high level.

To Hoffa and his ilk, a system based on merit does little to help unions keep their stranglehold on American workers.  Instead of supporting the RAISE Act, union leaders have been bellyaching over the recent Supreme Court decision, Knox v. SEIU, that struck down the public sector unions’ practice of forcing non-members to pay for political activism without first getting the non-member’s approval for these additional dues. Such a practice is unconstitutional under the First Amendment.

Meanwhile, the SEIU celebrated the defeat of the RAISE Act.

It is not hyperbole to say that unions are more interested in taking money from their own members–as well as non-union workers–than they are in allowing their members to earn higher wages.

The Communication Workers of America (CWA) is in an ongoing dispute with bankrupt American Airlines over an attempt to unionize the struggling carrier’s passenger service agents. Under National Mediation Board (NMB) rules—as an air carrier, American’s labor rules are set by the Railway Labor Act — 50 percent of the agents must sign a statement of interest before an election can be held.

Before February, that threshold was 35 percent. Since the CWA started its campaign before the law changed, it argued that it only needed to meet that threshold, but a federal judge disagreed. From the Associated Press:

Judge [Terry R.] Means, who oversaw a brief trial in his Fort Worth, Texas, courtroom this month, ruled that the 50-percent standard applied by the time that the mediation board got around to reviewing the union’s election request in April. He issued an injunction barring the board from conducting any further election-related activities.

Needless to say, the CWA is displeased. And to garner support, the union is promoting this advertisement:

Of course, the CWA didn’t always think that “stopping workers from voting is UnAmerican.” Back in 2009, the CWA and its parent, the AFL-CIO, endorsed and pushed hard for the so-called “Employee Free Choice Act,” which would have curtailed employees’ right to vote on whether to unionize. Now that the shoe is on the other foot, the CWA has backed voting.

Today’s Supreme Court decision in Knox v. Service Employees International Union (SEIU) could be a big step forward for employee rights. The Court found that SEIU Local 1000 violated public sector workers’ First Amendment rights by compelling non-members to pay for political activism.

The case revolved around SEIU funding of ballot measure campaign groups in California’s 2006 initiative season. The SEIU wanted to see two of then-Gov. Schwarzenegger’s proposals defeated. One would have required public-sector unions to obtain employees’ affirmative consent before using dues for political activity and another would have given the governor more authority to cut state employee compensation. Both failed.

Under California law, public-sector workers in a unionized bargaining unit can elect not to join the union, but must pay for “chargeable expenses” related to collective bargaining activity. In the process of raising money to fund its campaign, the SEIU assessed what it called an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.” The union required non-members in SEIU bargaining units to pay into the fund under the “chargeable expenses” rule.

Non-members who supported the Governor’s ballot initiatives sued the union to protect their First Amendment right to not support political activity with which they disagreed. The Supreme Court found that the activity was not a “chargeable expense,” and thus the SEIU was required to supply a “Hudson notice” that notifies non-members of their right to not pay into the union’s political fund. The Court ruled, “‘Lobbying the electorate,’ which the SEIU claims is chargeable, is nothing more than another term for supporting political causes and candidates.”

Furthermore, the Court ruled that the union should have erred in the interests of non-members who did not want to pay the assessment when considering whether to supply a notice. From the ruling:

If, as the SEIU argues, it is not possible to accurately determine in advance the percentage of union funds that will be used for an upcoming year’s chargeable purposes [non-political activities], there is a risk that un-consenting nonmembers will have paid too much or too little. That risk should be borne by the side whose constitutional rights are not at stake. If the nonmembers pay too much, their First Amendment rights are infringed. But, if they pay too little, no constitutional right of the union is violated because it has no constitutional right to receive any payment from those employees.

The high court also ordered that:

Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.

Though the Knox ruling only applies to public-sector workers, but it is heartening that the high court recognizes employees’ rights to not be coerced by a union into supporting the union’s politics.

Across the rust belt and beyond, state legislatures are considering much-needed workplace reforms. High-profile victories, including Indiana’s enactment of right-to-work legislation, have intensified calls for changes to our 1940s-era labor laws and specifically, passage of the Employee Rights Act (ERA).

The ERA is not the typical power grab attempted by management or union leaders at the others expense. Instead, the proposed changes re-balance the power equation between unions and employees.

Most people believe that unions only gain workplace certification through a secret ballot vote. In fact, over the last three years, a third of all union certifications were accomplished through an employee signed card with a union official watching whether that worker signed or refused. And in another revelation for most, if a union is established at your job, even if you are not a supporter you still may be required to use them as a middleman with management if you want to discuss your pay, scheduling or work conditions.

Many union shops have long been established with a majority voting yes in a real secret ballot election. But assume that election was in the 1960s. All those who voted yes are gone. And under current rules (and real-world realities), once a union is in place it is very difficult to dislodge. Why not automatically offer a re-vote to current members every three years just like we do for our elected officials?

Labor leaders celebrated when the National Labor Relations Board recently ruled in favor of so-called quickie elections. This new time frame restricts the communication window for discussing whether exclusive union representation ought to be voted in or rejected. We give elected officials many months to make their case. Why not guarantee employees at least 40 days? They should be able to hear from management and the union before deciding an issue that will affect their lives far more dramatically than any one vote for a congressman or senator!

And speaking of politicians, the ERA would also establish that a union members dues could not be used to support political candidates without their prior permission. In the current Alice in Wonderland world of labor, unions are taking their members forced dues payments to support politicians for office who, in turn, repay the union leadership by voting to deny employees prior control of that same dues money!
These reforms in the ERA boast overwhelming popular support. Polling conducted by ORC International indicates union and nonunion households favor them by majorities as high as 83 percent. Statistics also reveal that only seven percent of currently unionized employees ever voted for the union collecting their dues. Yet union officials in an irony obviously lost on them say its anti-union to give employees an automatic vote opportunity to re-certify or reject their union.

Not surprisingly, some employers have an interest in denying the certification re-votes that the ERA would establish. A handful of business owners who’ve struck sweetheart deals with their unions are concerned that employees could vote out their current representatives and replace them with a more radical crowd. Of course, if management feels the union is a positive force, they could endorse the union in the re-vote. (Here’s a bit of business schizophrenia: The same employers who have some union & non-union operations would probably try to stop the spread of unions among their employees but not work to reverse current certifications.)

Choosing and changing our leadership has been a keystone of life throughout American history. In the workplace, there’s no justification for denying current employees the voting rights that their predecessors exercised 10 or 40 years ago and which bind them today.

The ERA’s labor reforms in addition to being popular, potent, and long overdue extend our most enduring principles of democracy to a place where they can make a big difference.

This piece originally ran in Human Events.

There is an ongoing dispute between two unions over which should represent two Port of Portland workers, and now it has become so acrimonious the National Labor Relations Board (NLRB) has intervened.

The International Brotherhood of Electrical Workers (IBEW) and International Longshore and Warehouse Union (ILWU) dispute which union has the right to represent the two employees who plug in, unplug, and monitor refrigerated cargo containers. The Port’s operating contractor, ICTSI Oregon, recognizes the IBEW, so the ILWU has staged a work slowdown.

The slowdown has already caused one ship to bypass Portland for Oakland. Now the IBEW has declared its intent to picket the Port if it loses representative status.

The NLRB is now intervening. The Seattle regional office has filed suit in federal district court to declare the ILWU work slowdown unlawful. The ILWU has also filed for a court action, arguing it deserves to represent the two employees and isn’t staging a work slowdown.

This is concerning in light of the NLRB’s Specialty Healthcare decision, which will allow unions to form multiple smaller bargaining units (“micro-unions” to critics). The NLRB has already ruled that shoe salespeople at New York’s Bergdorf Goodman constitute a bargaining unit separate from other salespeople. Will micro-unions create more inter-union acrimony like that seen at the Port of Portland that will threaten business? Only time will tell.

Unions constantly complain about low wages for workers, and supposedly fight on behalf of their members for more pay.

Why then would the Service Employees International Union (SEIU) oppose legislation that would give employees a bigger paycheck?

Today, the SEIU sent out an email warning about the dangers of the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act (S.2371), without explaining what the bill actually does—most likely because its members would be in favor of it. The email reads:

The bill, which goes to a vote today, would take away employees’ rights to negotiate contracts that create a uniform, fair process for granting wage increases. Employers would be allowed to ignore what they agreed to in collective bargaining agreements – and that’s not fair.

The NLRB currently views individual bonuses as “direct dealing,” which is illegal under collective bargaining law. The premise of ‘collective bargaining’ is that everybody does the same amount of work, and everyone gets paid the same amount—yet the reality is far different.

The RAISE Act would not alter existing contracts in any way, but would give employers the ability to give pay raises under future contracts. The legislation also ensures that all employees have an equal opportunity to earn raises.

Apparently, giving a merit based pay raise would violate ‘workers’ rights’—and undermine the bureaucracy unions have built up to keep themselves in power.

In the aftermath of the Wisconsin recall election, many public sector unions are still licking their wounds—and apparently leaving their internal documents out in the open.

In an internal memo obtained by the Center for Union Facts, the Wisconsin Education Association Council outlines the communications strategy for messaging against “Walker and his right-wing allies.”

A few interesting “Dos” and Don’ts” (emphasis added):

DO

Stay focused on students – voters care about schools because they care about students.

Use parents as messengers when possible – while educators themselves can also be good messengers, parents’ motives are seen as less self-interested.

DON’T

Use cuts to teacher/education support professional benefits or pay as an example of the negative impacts of cuts – many voters still view educators’ benefits as overly generous.

Use the “union” entity as a messenger – making this about WEAC vs. Walker causes many voters to tune out and dismiss communications as “politics as usual.” Keep a face on this issue by featuring members/parents to tell about the impact of cuts.

You can view the document below in its entirety. Enjoy!