LaborPains.org

Recently, a number of groups taking the form of “worker centers” have staged walkouts of fast food restaurants in several cities. The most prominent has been Fast Food Forward in New York City, but Chicago, St. Louis, and Detroit have also seen some activity. The Detroit Free Press reports on events in that city:

Organizers in Detroit said several hundred food workers participated in the walkouts, which succeeded in disrupting operations at six chain restaurants in the city, including two McDonald’s, a Subway, a Burger King, a Long John Silver’s and a Popeyes. […] The Detroit strike was organized by a coalition of labor, faith and activist groups calling itself the Michigan Workers Organizing Committee.

Of course, these “Workers Organizing Committees” aren’t exactly forthcoming about who sponsors them. Unsurprisingly, the Service Employees International Union, which has been plotting a campaign to organize fast food restaurants for years, appears ultimately and financially responsible. Unions’ federal financial disclosures show that the SEIU has put over $2.5 million into the organizations fronting the NYC campaign.

With that level of investment, don’t expect unions to give up chasing a potentially deep source of dues—and perhaps just as important, mandatory initiation fees. Unions hope that by rebranding themselves, by dodging reporting requirements and picketing rules by using “workers centers” to lead the line, and by standing in the way of highly popular governance reforms (like the Employee Rights Act) they can reverse their decline. Workers deserve better than that.

One of the Obama National Labor Relations Board’s payoffs to Big Labor bosses was a rule requiring that employers provide notice to employees of their rights to unionize. The D.C. Circuit Court of Appeals ruled yesterday that that requirement violated the National Labor Relations Act and the First Amendment, and struck it down.

The posters contained no statement of employees’ rights to de-certify unions or refrain from paying the full dues amount to a union (under a case called Beck v. CWA), so business groups argued that the posters were one-sidedly pro-union. The Court found that it was unfair for NLRB to punish employers for failing to post posters with which they did not agree. (Lawgeeks can read the ruling here.)

The Wall Street Journal editors cheered this check on the NLRB’s activist streak, noting:

Alas for the NLRB’s overreachers, the Supreme Court has held on many occasions that freedom of speech prohibits the government from telling people what they must say. Such “compelled speech” is exactly what the NLRB was demanding. And while Judge Randolph found the First Amendment violation sufficient to kill the rule, his fellow judges wrote a concurring judgment that the NLRB lacked the authority to issue it in the first place.

This ruling may well join the other D.C. Circuit bombshell, Noel Canning (which found the “recess appointments” the Administration used to pack the NLRB when the Senate wasn’t in recess were invalid) in next year’s Supreme Court docket. But for now, federal courts aren’t taking NLRB’s pro-union activism lying down.

Usually when the SEIU is in a (figurative) dogfight with another group, it isn’t another union. In California though, the SEIU is fighting another union (the National Union of Healthcare Workers or NUHW) for the right to represent employees of Kaiser Permanente hospitals.

SEIU, which lost 45,000 members last year, currently represents Kaiser employees, but the NUHW (which incidentally is run by former SEIU officials) wants the possible dues windfall that poaching them offers. The Wall Street Journal reports on how the battle is playing out:

The SEIU is pulling out all the stops to hold on to Kaiser Permanente. Over the past five years, the SEIU has spent tens of millions of dollars to fend off the NUHW. The smaller union represents just 10,000 workers, but is backed by the California Nurses Association, which has provided $4 million to the NUHW since the beginning of the year, according to NLRB testimony by an official at the nurse’s union viewed by The Wall Street Journal. That is on top of a $2 million loan the nurse’s union made in 2009.

There’s clearly a lot of dues money at stake, as well as prestige. The Journal notes that losing the Kaiser bargaining units to NUHW would lead to a reduction in SEIU’s membership of up to 45,000 workers. As the Journal notes, with workers more reticent to sign on indefinitely with a labor movement with a checkered recent record, the NUHW model of raiding an existing union for new members becomes attractive.

Only 6.6 percent of private-sector workers are now unionized, the lowest level of private-sector unionization in 70 years. That’s as strong a sign as any that workers are fleeing the sinking ships of un-reformed labor unions. Thus far the labor movement has rejected widely supported reform proposals like the Employee Rights Act that might bring some of those workers back. Until they do, unions will have little to do but fight over the scraps.

The Obama Administration has made no secret of its efforts to stall the decline in union memberships not by reforming unions but by curtailing employee and management rights. The Department of Labor alone has reduced union transparency by abolishing certain reporting requirements and cut the number of investigations into union financial impropriety. Former Secretary of Labor Hilda Solis pushed hard for the failed secret-ballot-abolishing EFCA. The actions of the National Labor Relations Board (NLRB) and the non-recess “recess appointment” panel-packing scheme invalidated by a federal court also show the lengths to which the Administration will go to prop up its Big Labor (campaign) cash cows.

However, the biggest and most costly gift by the Administration to the unions may be yet to come. A Manhattan Institute report details a proposed rule which would require management to disclose any consultations with outside consultants—including labor law attorneys, whose consultations are currently protected by attorney-client privilege—during union organizing campaigns and that would require the consultants—again, including attorneys—to publicly list all their clients. The author, Diana Furcthgott-Roth, explains the cost:

We estimate that the total burden for the first year would be between $7.5 billion and $10.6 billion. The subsequent annual costs amount to between $4.3 billion and $6.5 billion. The total cost over a ten-year period could be approximately $60 billion.

This brings the cost of the proposed rule well over the $100 million level that requires the agency to perform a cost-benefit analysis. The department calculated no benefits from the proposed rule.

But there’s far more wrong with the rule than its underestimated cost to firms. In a page taken from the Obama Administration’s NLRB which eviscerated precedent at multiple junctures to make life easier for unions, the Labor Department is set to set aside a half-century of precedent and the plain text of the law (the Labor-Management Reporting and Disclosure Act or LMRDA) to enact this rule. Furcthgott-Roth explains:

The law’s broad objective was to improve transparency in the unionization process by establishing uniform reporting requirements for unions and employers, as well as for hired consultants who make presentations directly to firms’ employees.

But Section 203(c) of the law specifically states, “Nothing in this section shall be construed to require any employer or other person to file a report covering the services of such person by reason of his giving or agreeing to give advice to such employer. …”

The law clearly states that attorney advisers are exempt from the reporting requirement, but the Labor Department seeks to make this advice public in order to make it harder for firms to get advice about union issues.

Ultimately, the result of the move might be more infringements on employees’ rights. Since the rule would make consultations with labor attorneys public, more businesses might try to “go it alone” in dealing with union organizing campaigns. Without expert assistance, more firms might unknowingly transgress NLRB election rules. Also, more firms might be intimidated by the prospect of publicly disclosed consultations to enter so-called “neutrality agreements” which may contain a provision to take away workers’ rights to a secret ballot vote on unionization.

The Senate Health, Education, Labor and Pensions Committee recently began its hearings on Thomas Perez’s nomination to be Secretary of Labor. Many are asking questions about Perez’s record, but our Executive Director writes in POLITICO that Senators should be very interested in his and the Labor Department’s agenda:

The Senate’s HELP Committee should have no shortage of questions Thursday for Thomas Perez, the president’s nominee for secretary of labor. They should start by asking him whether he plans to continue the Department of Labor’s increased pro-union activity — or perhaps “activism” — from the past four years.

Since President Obama took office, despite having little to do with unions (the National Labor Relations Board has most of the responsibility) the Department of Labor has enacted several pro-union measures. In addition to considering a proposal that the American Bar Association has written could “chill and seriously undermine the confidential client-lawyer relationship,” the Labor Department has reduced its investigations into union corruption and reduced union disclosure rules. Our Executive Director explains:

The most notable change in policy has been the decrease in the department’s investigations into union financial reports. Intended to ensure that unions are faithful to the federal statutes that protect members from corrupt practices, DOL’s financial and compliance audits plummeted by 38 percent between 2009 and 2011. The average of 736 audits between 2005 and 2009 reached a disturbing low of only 461 by 2011.

Lest people be left wondering where the new DOL stood, the bureaucrats charged with ensuring that America’s unions are fair and honest also axed the regulations requiring union officials to disclose potential conflicts of interest. It’s no surprise why the updated LM-30 perished so quickly: The AFL-CIO had previously tried to stop the regulation’s implementation via a lawsuit.

Unions have made every effort to avoid transparency and reform, and the re-election of President Obama for which unions spent tens of millions of dollars ensures that the Labor Department will likely keep that away for the time being. But the Employee Rights Act offers a way forward through the people’s representatives to ensure that administrative meddling does not reduce the responsiveness of unions to their members.

The SEIU front group Fast Food Forward is holding its second “strike” in New York City. The strikers marching under the banner of this “workers center” — see our previous coverage of these unions-in-sheep’s-clothing here — chose to walk out today because 45 years ago, civil rights leader Martin Luther King, Jr. was killed in Memphis.

And it is in the second item that labor reveals the second half of the pincer in its “new labor” model. We noted last year that labor unions were preparing a campaign to try to define union organizing as a “civil right.” The American Federation of State, County, and Municipal Employees (AFSCME) is also marking this anniversary to unjustly link modern unions with a source of moral authority. The Fast Food Forward organizers additionally found veterans of the civil rights movement to give speeches and consult with the unionization supporters.

But like the misleadingly named Employee Free Choice Act that would have effectively killed union members’ secret ballot, declaring a “civil right to collective bargaining” is another way for unions to curtail employee rights. Rather than adopting reforms supported by wide margins of union households (like those in the Employee Rights Act), labor unions hope that the courts can use legal blunt instruments to force more employees to pay union dues they would rather not pay.

Where they’ve been asked to weigh in, employees see through the smokescreen of undeserved moral authority. In the labor stronghold of Michigan, the notion failed when it was put to a vote. Indeed, labor’s overplaying its hand there probably helped lead to the granting of full free association rights to Michigan employees under the state’s new right-to-work law.

According to the federal government’s Bureau of Labor Statistics, the proportion of private-sector employees in unions has tumbled to a 70-year low. Only 6.6 percent of private-sector workers were union members in 2012.

Unions’ failure to represent their members’ interests and overzealous defense of unsustainable benefits has hamstrung the airline, manufacturing, and automotive industries, and their numbers are showing the effects of this poor leadership. The most recent prominent victims of union stubbornness were Hostess employees sent to the unemployment line by a Bakers’ Union (BCTGM) strike.

And many former union members are wiser than the declining unions. The Associated Press reports:

Don McGough lost his job as a union steelworker. He found a new position and a decade later, he voted no when the machinists’ union tried to organize workers at his company, JWF Industries, in Pennsylvania. “There are so many companies that just closed their doors because the union wouldn’t budge,” he says.

Unions hope that by expanding organizing efforts to new industries, they can reverse their decline.

While unions representing U.S. manufacturing might — auto and steel — have become smaller, the emphasis in recruiting new members has shifted to the service sector.

The Service Employees International Union, which represents nurses and lower-wage service employees including janitors, security, hospital, home health and child care workers, has doubled in size since 1996, to 2.1 million workers. It says it has added 50,000 workers annually in the last decade.

But unless unions change their ways, such moves might only lead the new industries to follow the traditional unionized industries into bankruptcy court. Instead of clinging to the same old adversarial model on new turf, they should endorse the accountability reform proposals endorsed by 80 percent of union households contained in the Employee Rights Act. Only by reforming themselves and acting in the interests of their members can unions reassert their relevancy.

We’ve been chronicling the tactics of the Service Employees International Union (SEIU) for years. But David Bego knows what the SEIU is like up close and personal.  In his first book, Devil at My Doorstep: Protecting Employee Rights, Bego details how the SEIU aggressively came after his business in a typical anti-corporate campaign. His company, EMS, was targeted for unionization for years by Andy Stern’s organizers. Bego said he was happy to allow a union in—but only if the employees were able to vote via secret ballot. Not surprisingly, the SEIU was not interested in democracy. Instead, they took to their usual, outrageous tactics, including:

-  Offering money to employees to sign a card.
-  Getting children to hand out flyers in Bego’s neighborhood on Halloween.
-  Filing dozens of unfair labor practice charges.

In his latest book, The Devil At Our Doorstep, Bego, coming off several victories against the union, explains how his battle is but one small part of the larger war that organized labor has waged on the American people. Bego makes it clear, however, that it takes more than just the labor unions to make this happen. He explains that union officials are able to work with others in the far-reaching progressive community, notably the media and politicians. Without that support, unions would be in even worse shape than they are today.

Bego also provides a plan on how to combat the overreach of labor unions and to take the fight to them. For too long, too many people have been happy just to play defense against organized labor. Bego’s account shows that, unquestionably, unions will not rest until they have regained their former power.

Bego’s book is worth a read to get the perspective of someone who has dealt with the SEIU’s bully tactics firsthand—and won.