LaborPains.org

“Free speech for me, but not thee” could well be organized labor’s new slogan in California.

Everyone can enjoy the First Amendment for the guarantees of freedom of religion, speech, press, and assembly. But labor unions in California have been guaranteed even more speech rights than the rest of us.

In California, the Moscone Act and other related statutes make it harder for businesses to obtain a restraining order or injunction against labor union picketers than against other people or groups. This union perk even extends to labor protesting on someone’s private property. Lower courts in California struck down the law, saying that it afforded extra free speech protections to labor unions that did not exist for others wishing to publicly speak on another’s property. The courts ruled that this was a content-based restriction, which is impermissible under the First Amendment. It was also alternatively interpreted as a violation of the Fourteenth Amendment’s equal protection clause.

In the case at issue, the store did not allow any demonstrators within 20 feet of the entrance and had asked police to remove members of the United Food and Commercial Workers Union (UFCW) who were handing out flyers in front of the store.

But the California Supreme Court ruled that labor unions could picket in the doorway of a private store and receive legal protection. This gives labor an advantage over all other speakers that would want to stand in front of a store and exercise free speech. Justice Goodwin Liu went as far to say that the owner could not even place reasonable limits on the pickets by those invading his property — though most of the other justices disagreed.

Putting aside the freedom of association problems inherent in non-right-to-work states and even the speech questions concerning the spending of agency fees and union dues, there are other advantages that labor receives in the form of free speech protections.

The Norris-LaGuardia Act, a federal law, has elements similar to California’s Moscone Act when it comes to discouraging injunctions against labor pickets. Federal courts have taken a measured approach to Norris-LaGuardia and have not given unions an unquestioned right to picket on private property. In contrast, the California laws only allow a judge to stop a picket if there are illegal acts that will result in significant property damage. Nonetheless, Norris-LaGuardia is unique in giving certain types of speech — speech relating to a labor dispute — priority over many other forms.

Section 8(a)(1) of the Labor-Management Relations Act (LMRA), also known as Taft-Hartley, restricts the type of speech permitted by employers when employees have engaged in an organizing campaign. Courts have interpreted employers’ obligations very strictly, stopping employers from mentioning most anything that could be remotely perceived as discouraging unionization.

There is also the still-undecided Roundy’s case before the National Labor Relations Board (NLRB) which could require an employer to provide unions access to private property if it allows any outside group access. If the NLRB follows its recent habits of pro-organized labor activism, it would create an even bigger issue when it comes to a union’s invasion of the employer’s physical and virtual property.

While everyone can enjoy free speech rights, labor has the special benefit of a few bonus provisions that give its free speech an advantage over the rest of us.

Though some have started to issue their year-end and presidential-term-end reviews of federal labor law, some recent decisions turn the year on its head—not to mention at least one major chapter yet to be written.

Just last week the National Labor Relations Board (NLRB), ruling on Kent Hospital, decided that lobbying expenses could be considered chargeable expenses if they are “germane to collective bargaining, contract administration, or grievance adjustment.” This means that even if a union member opts out of permitting his or her dues to be used for politics (thanks to the Beck decision) certain lobbying would be still be funded. The problem is that the definition is so broad that a labor union could decide that almost all of its lobbying is germane for these purposes. The NLRB also ruled that Beck objectors are no longer entitled to a detailed audit showing that their dues were not spent on politics.

The Board also went back on half-a-century of labor law in reversing the Bethlehem Steel decision. The NLRB determined that even when a union is on strike or its contract with an employer has expired, the employer must continue to deduct dues and pay them to the union.

The Roundy’s case may be the most significant one that comes before the NLRB this year. And now the NLRB, free of any dissenting voices, can inflict more damage on labor relations than ever before.

The Roundy’s dispute is over access to an employer’s property by unions when that employer allows access for other groups, such as the Girl Scouts. The union wanted to hand out pamphlets encouraging a boycott of the grocer because Roundy’s was not a union store.

But there is a lot more to the case. The implications will likely extend to other forms of property–notably e-mail systems, and may overturn the Bush-era decision of Register-Guard, which stated that “equal” groups were cause-specific. For example, there could not be discrimination of one union over another, or union group versus an anti-union group, but the Girl Scouts and Red Cross could be permitted to operate there because they are groups not related to unions.

What’s at risk here is that the NLRB may use this opportunity to invoke Section 7 and determine that blanket rules banning work e-mail for personal use are not permitted, because e-mail is effective in communicating about organizing or other concerted activity.

In addition to this decision turning labor law on its head, there are serious constitutional concerns for employers. First, employers may be asked to severely compromise their physical property rights by being forced to allow unwanted persons to enter. In turn, depending on state law, there will need to be legal determinations of the status of that person—as in, is that person an invitee or a licensee—a distinction that often matters for purposes of tort law liability.

There are also First Amendment implications of forcing employers to open up their e-mail systems to facilitate speech. The next question would be, of course, to ask how far this must extend to be compliant. If company e-mail becomes a free-for-all, some companies may act to limit e-mail usage altogether. This will in turn hurt productivity.

This NLRB has made it a goal to push the envelope and give a distinct advantage to labor in all disputes. But a decision against Roundy’s in this case might be the most blatant unbalancing of the scales that we’ve seen. A line is crossed when a union is not only given equal standing with an employer, but a clear advantage.

Meanwhile, labor is gearing up for even more organizing in 2013. Truth-Out has given five reasons why it thinks labor will regain some power—all of which add up to more union insolence in the face of common sense and reality. It appears that the author missed the memo: actually making an argument and pounding the pavement to unionize employees is passé. If anything, more strikes and walkouts, for example, will only cause more people to turn their backs on unions.

Once, labor was concerned with preaching to the workers—changing hearts and minds, hoping to rally support among employees to stand up for their rights and effectively make gains collectively. Now, that model has failed, as unions have failed to help their members. Instead, unions will spend member money on politics to make sure that when a labor dispute arises, they only need to preach to the converted.

No one likes being late to the party. The International Longshore and Warehouse Union’s (ILWU) recent strike at the Ports of Los Angeles and Long Beach may have ended earlier this month, but their East and Gulf Coast brethren from the International Longshoremen’s Association (ILA) apparently want their slice of the strike pie, too. The ILA’s 200-member wage committee recently voted to authorize a strike if their current bargaining negotiations fail to produce a union-friendly contract by December 29.

The strike could affect more than 14,500 ILA members. The geographical range of these workers includes American ports from Maine to Texas—a much larger range than ILWU’s California strike, which only affected two ports, albeit two of the largest in the country.

Economically, this strike could be devastating. One risk management firm is reporting that the strike would mean “inventory depletion, rerouting, hoarding, and price speculation ripple through supply chains of global companies.” Trade associations and business federations have also chimed in, noting that millions of American jobs will be adversely affected by a strike.

The contract negotiations have broken down over the question of a cap on “container royalties.” These fees were introduced in the 1960s to cushion union jobs threatened by automation and technological advances. Since then, the royalties have become a de facto form of compensation—regardless of whether a worker’s job is threatened by technology. Today, they average $15,500 per ILA worker per year and cost the East Coast and Gulf port industry over $211 million last year alone.

Port management wants to cap these fees, which have skyrocketed by as much as 500 percent at some locations in the last fourteen years. Considering that ILA members average a $120,000 annual salary, before overtime and benefits, it’s hard to believe that longshoremen desperately need the royalty rate to rise any further.

The ILA sees things differently. They want these fees to keep growing—and the faster the better. Self-interest may be at play here: the union gets ten percent of each royalty, which led to $21 million additional revenue in 2011.

It remains to be seen whether the 14,500 ILA members actually want this strike, or whether they’re being forced into it by the 200 members of their wage board—who comprise a mere 1.3 percent of total ILA membership. But one thing is certain: Without a secret ballot vote on strikes, these workers aren’t able to freely disagree with the union bosses who are pushing them off the docks and leaving them adrift at sea.

The National Labor Relations Board (NLRB) has officially made the “naughty list” for 2012. Earlier this month, the House Committee on Oversight and Government Reform released a report criticizing the NLRB for abandoning its role as an “independent regulator” and becoming a “dysfunctional union advocate.”

The report, which runs to 33 pages, “documents a pattern of behavior at the NLRB that undermines its integrity and creates an impression that the NLRB has morphed into a rogue agency plagued by systemic problems.”

The overview of the NLRB’s questionable rulings and activities includes:

• •A “pro-union bias,” including “an extreme lack of impartiality” in the recent Boeing case and “jubilance and excitement” at news of the union’s agreement with Boeing.
• •Multiple instances of NLRB officials “undermining the separation principle,” particularly between the Board and the Office of the General Counsel during the Boeing case.
• Evidence that NLRB officials “thwarted Congressional oversight” on several occasions, including delays in handing over documents and “flippant” reactions to congressional requests.
• Fostering “uncertainty and instability” in the workplace through its rulemaking and its lawsuit against Boeing.

The report also highlights the NLRB’s reversal of precedent in its Specialty Healthcare decision. The decision’s legalization of “minority unions,” the report notes, allows unions to organize businesses regardless of whether a majority of employees support unionization.

Another example of the NLRB’s naughtiness is the “regulatory overreach” it has undertaken in the form of two new hyper-partisan substantive rules. The rules in question are the “quickie election” rule and the “notice posting” rule—two overtly partisan rules which have been reviewed by federal courts.

Rounding out the list are complaints about President Obama’s questionable use of “recess appointments” to appoint controversial Board members and allegations of “ethical and criminal misconduct” by NLRB Acting General Counsel Lafe Solomon, most notably in a case in which he had a financial interest.

Final decisions on the legality of many of these issues have not yet been reached, most notably with the faux-recess appointments. Yet the abundance of evidence still points to an NLRB that has abandoned its neutrality and taken up the union cause as its own. All that remains is to see what the NLRB gets in its stocking this year. Hopefully it won’t be card check.

The reverberations of Michigan becoming a right-to-work state aren’t likely to settle anytime soon. Vincent Vernuccio and Joseph Lehman wrote in the Wall Street Journal that inspiration can be found in the story of Michigan’s right-to-work law passage: “The inspiration comes to the supporters of worker freedom that if Michigan can give union members a choice, so can they.”

It looks like Missouri lawmakers are inspired. Although they aren’t looking to pass a right-to-work law, they are hoping to extend some more freedom to union members. Missouri House Speaker Tim Jones has put paycheck protection on the list of the body’s legislative priorities for 2013.

Paycheck protection is often seen as one of the most popular labor law reforms. The bill that Missouri legislators want to pass would require unions and employers to receive an annual written confirmation from the employee before money can be deducted from his or her paycheck to cover political spending. They are attempting to pass paycheck protection for both public and private sector unions.

Paycheck protection is one of the tenants of the federal Employee Rights Act, which was championed by soon-to-be-Senator Tim Scott of South Carolina in the last Congress.

As Jones notes:

“Money is extremely important to the labor unions. They are the biggest opponents to us on that level and I look at what happened in this last campaign cycle and most of the Democrats in this state rely on that money which is forced from hard-working workers into those coffers.” [emphasis added].

It hardly requires mention that but for the political money at stake, right-to-work would be a non-issue. In any other context, no politician, much less the President of the United States, would be advocating for a forced association. Labor’s best argument against paycheck protection is a false equivalency with shareholders of a corporation. As our Managing Director J. Justin Wilson wrote in the Columbus Dispatch:

Corporate shareholders can, at any time, sell their shares if they disagree with the corporation’s activities.

Conversely, in 27 [now 26] states, including Ohio, many employees are forced to be dues-paying members of a union in order to keep their jobs, with no direct control over which candidates receive union support. Refunds for the portion of their union dues that went to political activity can only be requested through a complicated process.

Labor’s rhetoric will always fail when it has to go up against the facts and the desire for real employee rights.

Now that the dust has (mostly) settled in Michigan, we can take a closer look at what Michiganders can look forward to.

The state will, for the time being, remain a union powerhouse, as current union contracts will not be affected by the change. Right-to-work kicks in upon their expiration. But even without an immediate change, there is the potential for a quick advance for Michigan. There are numerous examples of how Indiana has already benefited from going right to work in February.

And as The Wall Street Journal explains, the economic calculation isn’t an easy task, and certainly not one that is easy to dramatize with a single number. A few highlights offered by WSJ include the fact that in the past three years, private employment has grown 4.9 percent in right-to-work and 3.9 percent in forced unionism states. Other numbers on total compensation vary from state to state, based on industries and other factors. But Mark Arend, editor in chief of the business magazine Site Selection told the WSJ, ”Companies will be more seriously inclined to look at a state if it’s right-to-work.”

And Michigan is likely to gain new residents as well. Vincent Vernuccio and Joseph Lehman of the Mackinac Center say that Michigan was the only state to lose population from 2000-2009. And according to the Miami Herald, one study shows:

Between 1980 and 2010, the economies in right-to-work states grew 3.3 percent annually; in the rest of the states, 2.6 percent. It is certainly no coincidence that between 1984 and 2011, the number of Fortune 500 companies headquartered in right-to-work states more than doubled, from 74 to 157.

Of course, one of the most practical, noticeable gains is in worker freedom. Jennifer Rubin of The Washington Post explains:

No one should be forced to join a union against his or her will. It is antithetical to a free people to have the state invest unions with the power to collude on labor costs and take union dues against employees’ will. Liberals are in favor of forcing employees to join a union; conservatives are in favor of allowing employees to choose not to and to protect employees’ property rights against compulsory dues deduction.

Photo via Flickr user david_shane – Used with Creative Commons Attribution License

Eight days and nearly eight billion lost dollars later, the International Longshore and Warehouse Union (ILWU) clerks’ strike at the Port of Los Angeles and the Port of Long Beach finally ended earlier this month. The strike made one thing painfully obvious: minority unions have the potential to be disastrous to American industry.

This particular strike had very modest beginnings. The initial strikers numbered only 600 members—port clerks who feared that their jobs would be outsourced or, more likely, replaced by new technology. After working for two-and-a-half years without a contract, the clerks walked off the job and onto the picket lines. Things got worse when the remaining 10,000 ILWU members launched a solidarity strike, shutting down 10 of the 14 terminals.

Consider what this small number of striking workers was able to accomplish. The Ports of Los Angeles and Long Beach directly support a combined 48,000 port-affiliated jobs. The nature of the port industry, however, means that the number of jobs they indirectly support runs to over 1.2 million jobs in California and 5 million jobs nationwide. Additionally, the value of the cargo passing through both ports runs to an estimated $428 billion each year.

A mere 600 striking workers brought this titanic enterprise to a grinding halt. The sheer amount of damage done by such a small number of people boggles the mind.

It’s also a clear example of what awaits American business now that the NLRB has opened the door for minority unions.

The legal roots of the minority union—alternatively called “micro unions”—go back a 2011 NLRB case. In Specialty Healthcare and Rehabilitation Center of Mobile, the NLRB ruled that a small group of nurses could unionize even though they constituted a minority in workplace. The decision noted that, even though the larger workplace formed the “appropriate bargaining unit,” it did not mean that the smaller section constituted an “inappropriate” one.

Prior to this ruling, union organizers had to approach all of the workers that shared the same workplace interests and performed roughly similar work—the “appropriate bargaining unit.” But with minority unions, organizers only have to approach a cross-section of the full group. The result?  Unions can incrementally unionize businesses, even if a majority of workers want a union-free shop.

The following May, another NLRB case extended the logic of Specialty Healthcare even further. In the Bergdorf Goodman case, the NLRB ruled that 42 employees in a 372-person shoe store could unionize. The sole difference between the 42 employees and their 330 coworkers was that they only sold women’s shoes.

The threat to business is obvious. As minority unions begin to proliferate, businesses will have to contend with dozens or even hundreds of different unions—and union contracts—in their stores. A single unit of employees—those that work on a loading dock, for instance—can thus shut down an entire store.

With the addition of more HR and legal fees, business operating costs are sure to rise, including at companies already struggling with their bottom line. Meanwhile, at companies where the majority of workers don’t want to unionize, the tried-and-true practice of the democratic majority won’t be enough to keep union organizers at bay.

The port strike hints at the sort of havoc minority unions can wreak. Though not a minority union themselves, the ILWU clerks’ actions are a testament to what a slim minority of workers can achieve with a strike. Minority unions will only make this kind of seismic disruption more commonplace—and more costly.

It’s no surprise that Michigan’s unions came out in force to protest Michigan’s right-to-work law over the past two weeks. One group of protesters, however, deserves a gold star: the teachers who “called in sick” so that they could join the loud and violent throngs marching through Lansing.

Most reports indicate that the number of striking teachers ran to several hundred. Yet while the exact figure isn’t  known, one number is not in dispute:  26,000 Michigan students had classes canceled because of the high absenteeism. In the metro Detroit area, three entire school districts closed on Tuesday due to a lack of teachers. The President of the Detroit Federation of Teachers also estimated that “several hundred” of his fellow Detroit Public Schools teachers joined him outside the capital.

The teachers abandoned their chalkboards for the streets at the urging of the Michigan Education Association (MEA). The absentees must not have finished reading the memo, however, as it only requested them to take off “after work.” Either way, the MEA—the largest labor union in the state—has good reason to fear right-to-work: it’s bad news for an organization that spent $134 million last year but only took in $122 million. If there are any teachers who never liked that they were forced to pay dues just to keep their jobs, these revenues will surely decline.

Perhaps the MEA should be more worried about the fate of the students its members are supposed to teach. In Detroit, only 7 percent of the 8th grade students passed their readings tests, and only 4 percent registered proficient in math. Meanwhile, the state recently received a “D” grade for its K-12 student achievement.

Thanks to their antics in Lansing this week, Michigan’s teachers have lost another bargaining chip with their students. The next time they chastise a student for skipping class, the student need only point out that the teachers did the exact same thing this past Tuesday.