LaborPains.org

A couple of weeks ago at the beginning of April, the Senate held a so-called “vote-a-rama” on dozens of amendments to the Senate version of the budget. One of those amendments, introduced by Sen. Tim Scott (R-South Carolina), was a provision which would forbid federal agencies from automatically deducting union dues from employees’ paychecks. And in the interests of ensuring employees’ freedom to associate, Heritage Action for America — a 501(c)4 group affiliated with the Heritage Foundation — formally “scored” the vote on the Scott Amendment in the vote-a-rama.

The Scott Amendment resembles a provision of the Employee Rights Act that Scott co-sponsored as a member of the House of Representatives in the last Congress that applied to private-sector employees under the National Labor Relations Act. That proposal would have required unions to get an employee’s affirmative consent before using his or her dues for political purposes.

Unfortunately, the amendment did not pass. (You can review the vote here, on the Senate website.) But with major national groups noticing the importance of employee rights provisions, perhaps Big Labor’s vaults of campaign cash taken from members’ paychecks whether they support the candidates or not will meet some countering forces.

Free choice in employment never seems to interest organized labor or those on the left. In any other context, the freedom of association is heralded as an important right. But thanks to the trends in labor’s political spending, the story is quite different.

Nonetheless, Sherk makes the case for states to allow state and local government workers to voluntarily decide if they want to be members of the currently established union, a different union, or just represent themselves. Note that this is different than right-to-work: In right-to-work states, if an employee opts out of joining the union, he or she is still forced to work under the union-negotiated contract. That system is what prompts organized labor’s attack that those exercising their rights are “freeloaders.”

The problems with the current system are numerous, according to Sherk. To name a few:

• Unions, as a labor cartel, unnecessarily increase costs by dictating the only acceptable terms of employment and compensation.
• Taxpayers are stuck footing the bill for union work done on the job, and must also pay for a system that helps to subsidize the union’s fundraising by administering payroll deduction.
• “One-Size-Fits-All Contracts” that don’t allow individuals to thrive (or fail) on their own and instead fall back on antiquated seniority rules and standardized raises.

Sherk also recognizes an issue that is a key element of the Employee Rights Act—the need for a recertification vote. An overwhelming majority of union members never voted for a union to represent them.

And as we’ve said before in the context of right-to-work laws, instituting a voluntary representation system means that labor unions will have to make themselves relevant and accountable and actually serve their members, not simply milk them like a cash cow.

Sherk’s unique solution is one that would give unionized employees greater free choice than they have ever enjoyed before.

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.

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.

The end of the Michigan legislative session looks like it will be anything but “lame.” Republicans, including Governor Rick Snyder, have come out in support of “freedom to work” legislation that they hope will pass before the end of the year. The legislation will give all employees the right to work without having to pay any union dues or agency fees, although the law will not affect police or fire unions. The private sector law passed the House this afternoon

The 23^rd right-to-work state just came on board in February, when Indiana joined the club. Despite some attempts by labor to stop it, right to work appears to be sticking around. At that time, it seemed like New Hampshire or Rhode Island would be the next states to pass labor reforms, but Ohio stumbled and labor turned its attention to the November elections.

It was in Michigan that labor suffered perhaps its most stunning defeat with Proposal 2, the ill-fated ballot measure pushed by labor that would have enshrined the right of collective bargaining in the state constitution. Michigan voters recognized the problems with the amendment and soundly rejected it.

On Fox Business Channel on Wednesday, Vincent Vernuccio (who was featured here in October) explained what right to work is all about and what the situation is in Michigan:

As Vernuccio explains, Indiana is already seeing the positive effects of instituting right to work. It is often a draw for businesses.

The Buckeye Institute explains that this has been a long-standing trend:

The latest numbers, from our October report, show that nearly 12.5 million private sector jobs have been created since January of 1990 in Right to Work states vs. a little under 8 million in the Forced Union states.  That equates to a 37 percent increase in RTW states vs. 14 percent in non-RTW states.

Similar studies come to the same result: Right to work helps employees and states prosper.

Unions like to play up the fantasy that they stand for “the little guy.”  But that illusion quickly fades when labor leaders have to deal with those little people, and especially if those people are members of the union.

The latest exhibit is Mariam Noujaim, an Egyptian immigrant and member of the 95,000-member SEIU Local 1000, which represents the state employees of California. Since 2010, Noujaim has been on a quest to take a look at the local’s books in order to determine if the union has been wasting member dues. Jon Ortiz of the Sacramento Bee, who covers labor in California, reports:

State employee Mariam Noujaim said the tussle with her union started with a question: Why does the state pay for crossing guards to work on a lightly traveled street between two DMV buildings connected by a tunnel?

“I really believe we can help solve our crisis by spending our money on monitoring the waste rather than bribing political and special interest (groups),” Noujaim wrote in an indelicate April 2010 email to her Service Employees International Union Local 1000 representative.

Under the Labor-Management Reporting and Disclosure Act (LMRDA) any private sector union member has the right to see his or her union’s required federal financial filings as well as the “supporting records” if there is “just cause.” But that’s no help to Noujaim—since she is in a public sector union, such disclosure is not required. Under federal law, public unions must provide an IRS Form 990 and a more detailed Hudson notice—an independently audited report showing how the union dues are calculated. Under California Corporations Code Section 8333, Noujaim has the right as a member of the union to inspect the books “for a purpose reasonably related to such person’s interests as a member.”

After spending $18,000 of her own money and months and months in court, Noujaim was finally able to view Local 1000’s records—with limitations, of course:

After two years of legal battles to force SEIU to open its books, Noujaim and fellow activist Lisa Garcia had half a day to riffle through credit card records and expenditure statements from 2009 and 2010. They were not allowed to take photos, make copies or take anyone else to view the documents.

What was it that helped Noujaim to earn the “suspicion” of the local?

“She supported Meg Whitman,” [union spokesman Jim] Zamora said, referring to the 2010 Republican gubernatorial candidate whose name became a virtual epithet among state workers for her promise to cut 40,000 state jobs and tear down public pensions.[emphasis added]

This would be serious cause for concern for a private union. As far as we can tell, federal law doesn’t distinguish the rights of union members based on their political affiliation—despite what union political spending records may suggest.

Noujaim’s website www.helpsaveourstate.com, alternatively known as “OCCUPY SEIU,” has chronicled her journey to make the union responsible to its members. Noujaim said that what she was able to see on Tuesday showed large expenses for hotels, restaurants, and travel, which she viewed as potentially unnecessary, excessive spending. Noujaim believes that the union could and should work as a watchdog to fight waste throughout the California government, as its employees are on the front lines.

On its website, Local 1000 encourages members to blow the whistle on “wasteful private vendor contracts” in order to help the state save money (and to give the jobs to government union employees). But the union doesn’t want to be open to the same critique. You’d be hard pressed to find any detailed financial information on the union, and what you can find is only readily available through another website.

Accountability and transparency are near the bottom of labor’s priorities. Instead, unions prefer to focus on political activity and personal attacks. Noujaim would like to see labor improve:

“They’re becoming a special interest group so we’re trying to go back to the original goal and purpose of the union to work for their members not to be a special interest group and work for politicians.”

This isn’t the first time that Local 1000 has been in the news this year. Another California state employee, Dianne Knox, opposed a special fee for politics assessed against her, a “fair share” member. The case, Knox v. SEIU Local 1000, was decided 7-2 in her favor in late June after several years of litigation.

Only days later, Local 1000 agreed to cut the compensation of union members in exchange for more time off. The union’s leader, Yvonne Walker, had a tough go of it explaining those cuts to members, though eventually, 65 percent of them did. The bad times that labor has endured in November seem to pale in comparison to SEIU Local 1000’s bad year.

But Noujaim should count herself lucky, considering the only tactic used against her was stalling. Members of SEIU Local 1000 were accused of attacking another state employee-critic in 2009. The victim, Ken Hamidi, dared to question where dues were going, especially after a 50-percent increase.

Take a step into an alternate universe, just for a minute: Mitt Romney has just been elected the 45th President of the United States. Millions have been spent on the campaign, but one of the largest chunks comes from Corporation X. This large corporation starts to take claim for Romney’s win even before polls have closed. The leadership of the corporation has made campaign stops to rally its troops throughout the campaign. In press releases that go out hours after Romney’s victory speech, Corp X explains how its many volunteers, phone calls, and door-to-door stops led to the Romney win.

But some people want to know why Corp. X spent so much money on Romney’s campaign. The chairman of Corp. X tells a national newspaper who asks about political spending, “We’re the big dog, but we don’t like to brag.” When asked about what he expects in return for the corporation’s investment, the chairman explains that President-elect Romney needs to deliver on a piece of legislation that favors the corporation. That will be Romney’s payback to Corp. X. The chairman said that Corp. X spent a fortune on electing Romney, and he’s proud of it. And in no uncertain terms, he tells the press that, “Romney has owed a debt to Corp. X and will continue to owe a debt to Corp. X.”

It would only be a matter of time before outrage would ensue from both sides of the aisle.

Now, come back to reality and consider President Obama’s election and re-election. Labor unions spent millions upon millions of dollars to push Obama over the top in 2008 and again in 2012. And what did we hear last time? Here’s a hint: The political activity of imaginary Corp. X and the quotes from its hypothetical chairman weren’t created out of thin air.

The AFL-CIO’s midday memo showed high turnout for union members in Ohio was higher than in 2008. President Richard Trumka made campaign stops throughout battleground states. The SEIU’s “Victory!” e-mail sent out this morning bragged about the 13 million calls, 25,000 volunteers, and 5 million door knocks by the labor union. The “big dog” is AFSCME, according to its head of political operations.
As for payback? Gerald McEntee of AFSCME made clear what he expected:

Mr. McEntee said labor must guard against overreaching and should avoid warring with other Democratic-leaning groups – “to turn the other cheek on this and be more interested in the bigger picture,” he said – but he also said unions paid their dues by supporting Democrats and President-elect Barack Obama in this year’s election. He said they expect that effort to be rewarded with action. “The payback would be Employee Free Choice Act – that would be a vehicle to strengthen and build the American labor movement and the middle class,” he said.

And who had the pride in bankrolling Obama’s 2008 win? None other than Andy Stern of the SEIU:

We spent a fortune to elect Barack Obama — $60.7 million to be exact — and we’re proud of it.

Larry Hanley, president of the Amalgamated Transit Union, is ready to collect from Obama:

“Barack Obama has owed a debt to labor and will continue to owe a debt to labor”

It’s clear that labor has an expectation of a quid pro quo. In 2008, unions bragged about their spending, and were explicit that it came with strings attached. And despite many of his other campaign promises, Obama and Democrats in Congress pushed hard for EFCA when they controlled the White House and Congress. But yet, there is no outcry. With even greater spending on Obama’s campaign this year, there is no reason to suspect that that anything has changed.

In Citizens United, the Supreme Court put unions and corporations on par with one another when it comes to allowable political spending. The decision has been used by progressives to demonize corporations and imply that big spenders will have politicians in their pockets. But why is it acceptable for labor to openly discuss buying a politician’s way into office—the Oval Office—and still not hear a peep?