Labor Law Guy

EFCA Clings to Life Like a ‘Knife of the Living Dead’*

Posted in Federal Labor Law, Random Musings, State Labor Law by laborlawguy on April 8, 2009

You can’t kill it, and it comes back to haunt you every time you think it’s safe to venture back into society again.

It’s the Employee Free Choice Act (EFCA), and even though it lacks the votes to survive a Senate filibuster, it’s still stalking American businesses and filling the nation’s newsprint, airwaves and cyberspace with endless prattle (like this, huh?).

Somehow, I think the unions and their paid-off Democrats in Congress will devise a way to slip this bill through under the cover of darkness, perhaps attached to a spending bill and rushed into birth through the reconciliation process. But look for it soon, rising from the dead with endless life in it.

Thus, when I noticed an article about “Card Check Dilemma” on the Huffington Post site, I was expecting to find someone extolling the virtues of instant unionization, whether real or faked (I hear that ACORN is huddling at this very moment with union organizers to share their secrets on creating imaginary voters, or in this case, imaginary card signers).

Instead, the CEO of the Consumer Electronics Association, Gary Shapiro, son of a union organizer, came out steadfastly opposed, indeed calling for instant slaying of the EFCA monster. He writes:

Given the national economic crisis, unions need to do a reality check on card check and check out on this issue.

Only then can we all safely walk our own streets again.

* My woebegotten attempt to come up with a variation on “Night of the Living Dead.”

Business Group Offers Alternative to Employee Free Choice Act

Posted in Federal Labor Law, Random Musings by laborlawguy on March 23, 2009

Starbuck’s, Whole Foods and Costco have floated a proposal to level the playing field, as they term it, in union organizing. The group rejects two prongs of the proposed Employee Free Choice Act (EFCA)–the card-check and binding arbitration provisions–and keeps in place the current system of secret balloting.

What they do retain from the EFCA is the provision for increased penalties on employers who obstruct the unionization process or who otherwise threaten, intimidate or outright terminate activist employees.

What they offer in place of card check and arbitration are an expedited election process and equal access for the union to employee gatherings held pre-election for informational purposes, meetings which unions claim are currently used by employers to spread disinformation and scare employees into voting no.

The proposal was instantly rejected by Congressional sponsors of the EFCA as “written by CEOs, for CEOs.” An AFL-CIO spokesperson said it was “simply not an alternative.”

The three companies found little comfort in the business world either, where a line of no compromise has been drawn in the sand.

It appears that friends and foes of the EFCA alike have adopted an all-or-nothing appoach. Time will tell if one side or the other eventually blinks–or if both do.

(For the record, Costco is the only one of the three companies to be unionized, and it is just partially unionized through a handful of  locations that were organized by the Teamsters when they were Price Clubs. Costco does, however, give all its employers the same wages and benefits that it negotiates with the Teamsters every three years. Whole Foods actually once had one unionized location in Madison, Wisconsin, out of 300 or so total outlets. The company’s co-founder, John Mackey, has routinely blasted the “intellectually bankrupt left” on his blog and derided unions as “like having herpes.” In fact, Mackey discovered an online community on Yahoo devoted to Whole Foods and contributed nearly 1400 comments over seven years using the pseudonym rahodeb, a variation on the name of his wife Deborah. This activity of his came into play when Whole Foods made an offer to purchase Wild Oats, and the SEC discovered that Mackey had used the online communities for Whole Foods and Wild Oats to game the deal. Whole Foods, to its credit, does provide all employees with free health insurance and competitive wages, factors which have helped stave off unionization at all locations save that one. Starbucks has been in and out of hearings and courtrooms in the past for alleged union-busting activities, and late last year was found guilty by a National Labor Relations Board judge and ordered to reinstate three employees with back pay. There is a Starbucks Union Web site, but its account has been suspended, which hosting services will do for unpaid bills, overuse of bandwidth, violations of terms of service, and other reasons. Even if I had the time, I doubt I’d be motivated to find out why the union’s site has been suspended–unless I can discover some kind of scandal hidden therein.)

EFCA Could End Up Unionizing 4,180,000 Small Businesses

Posted in Random Musings by laborlawguy on March 13, 2009

The 1935 National Labor Relations Act (NLRA), commonly referred to as the Wagner Act, exempted small businesses from union organization, but the definition of small business has not been updated since 1959. The exemption ends when a small, non-retail business grosses $50,000 in a single year; for retail operations, the figure is $500,000 a year.

However, the Employee Free Choice Act (EFCA) now before Congress contains no exemption, nor any updating of the NLRA exemption. Thus…

Using census data, the Heritage Foundation (admittedly a pro-business, pro-capitalist outfit) estimates that 4,180,000 U.S. small businesses employing 38,934,000 Americans could end up being unionized.

The Foundation poses this scenario: Say you own an automobile repair shop employing five people. A union guy comes by at the close of work one day and corrals three of them into a local pub, where they all sign cards authorizing a union. Now, using a typical tactic, the union rep might call these cards “requests for information” or some such, but anyway, the shop is thereby unionized.

You, the owner, now have 10 days to begin negotiating with union guy, who now represents all your employees. He makes deliberately ridiculous demands for wages, benefits and working conditions, demands to which you could never accede and stay in business, so you refuse. In 90 days, rep guy calls in a federal mediator, but his demands stay the same. After 30 days, the mediator calls in an arbitrator, who then dictates a two-year contract that splits the difference between what you proposed and what union blackmailer wanted.

Result: Your costs go up by 50 percent, and you go out of business. You go back home and start working out of your garage, making as much or more than you did owning a business. Meanwhile, five people are out of work, but union guy has moved down the street to organize other small businesses.

Read the full scenario and explanation.

The Road to ‘Armageddon’ Starts Today

Posted in Federal Labor Law by laborlawguy on March 10, 2009

Sources at Personnel Concepts indicate that the much-feared-by-business Employee Free Choice Act (EFCA) will be introduced in the House of Representatives today.

Well, nothing new here. EFCA made it through the House’s 435 members once before and passed with flying colors, but its fate in the Senate may be another matter altogether. Just today, the Wall Street Journal reported that “Labor Bill Faces Threat in Senate” because of some suddenly wavering Democratic support.

Whether this wavering is just posturing or temporary remains to be seen, but EFCA does require 60 votes in the Senate to pass. Without 60 votes, a bill can be filibustered into extinction, which is exactly what the Republicans would gladly do to this piece of legislation.

EFCA, also called “card check” because it does away with the requirement for secret-ballot unionization votes and makes certification by majority signatures possible, has come under a withering attack from the U.S. Chamber of Commerce (which called it “Armageddon”) and other business groups. Even Obama supporter and billionaire investor Warren Buffett came out against EFCA in a CNBC interview yesterday.

Time will tell what happens to EFCA, but I’m sure the folks at Personnel Concepts will keep us up to date with its news alerts.