Category Archives: Labor

Labor’s Dirty Tricks

Real fair, yes?
April 21, 2015 7:43 p.m. ET

Lawyers for the Labor Department on Wednesday will appear in federal court in Florida to answer to Judge M. Casey Rodgers, who sounds increasingly skeptical about the department’s honesty. The case is part of an attempt to regulate to death a legal guest-worker program.

It’s called H-2B, and many businesses rely on these visas to find workers for temporary or seasonal jobs—from processing crawfish in Louisiana to landscaping in Michigan. American jobs are also at stake. If a Maryland seafood company suffers because it can’t get enough foreign workers to shuck oysters, its American workers are put at risk too.

The legal issue is narrow and has to do with which federal department gets to run the program. The larger story is how President Obama’s Labor Department has been trying to make work visas so burdensome that they’re not worth the effort to apply for.

Labor has already bollixed up H-2A visas for agriculture. In recent years it has used its authority to impose all manner of new requirements ranging from dictating how pay is determined and what housing employers must provide to increasing the amount of paperwork. Now it’s trying to do the same to the H-2B program.

But Labor’s efforts hit a snag when Judge Rodgers ruled in December that Congress had given the authority over H-2Bs to Homeland Security, not Labor. Labor is appealing that ruling—and showing bad faith along the way. When Judge Rodgers blocked Labor from imposing new rules for H-2B’s in March, Labor responded by suspending the whole program and throwing businesses and workers into limbo. In response the judge granted a stay, which she last week extended to May 15. Her purpose was to ensure that employers could still get their visa applications processed for the summer jobs season.

But Judge Rodgers also set today’s hearing to consider outstanding motions, and the tone of her order suggests she remains doubtful about Labor’s intentions. She notes the fear by the Small and Seasonal Business Legal Center that the moment her stay expires, Labor will use her ruling to ensure the H-2B program is effectively dismantled or at least severely disrupted. Keep in mind that employers who seek H-2B visas are avoiding the easier route of hiring illegal migrants. They are being punished for following the law.

Congress is taking note. Last month a bipartisan group of Senators led by Maryland Democrat Barbara Mikulski called on Homeland Security to clean up this mess. This was followed by a bipartisan letter from 36 House Members led by Bob Goodlatte and Trey Gowdy, respectively, the chairmen of the House Judiciary Committee and House Immigration Subcommittee. They ask Homeland to keep Labor from gumming up the process and thus making it impossible for people to play by the rules.

All of this smacks of Labor Secretary Tom Perez once again doing the dirty work of the AFL-CIO, which hates guest-worker programs. Judge Rodgers shouldn’t let him get away with it.

Labor’s Dirty Tricks – WSJ.


Ambushing Employers’ Speech Rights

The Left at it . . .
By Thomas M. Johnson Jr. April 16, 2015 7:07 p.m. ET

A popular narrative since the Supreme Court’s Citizens United decision in 2010 posits that corporations have displaced political and religious minorities as the principal beneficiaries of First Amendment rights. There supposedly has been a “corporate takeover” of the First Amendment, as Harvard Law School’s John C. Coates IV put it in a February paper.

This theory is flawed for many reasons, but one deserves special mention. For many companies, the most important place to exercise speech rights is in the workplace, where management and employees communicate about the terms and conditions of employment. And in this area, organized labor has succeeded for decades in restricting a company’s ability to speak freely to address employee concerns.

The current administration in particular has sacrificed the speech rights of employers and employees to advance a pro-union agenda. Last month, for example, the president vetoed an effort by Congress to overturn the National Labor Relations Board’s controversial “ambush election” rule. This rule, which took effect on Tuesday, reduces the time that employers have to present information to employees in advance of a union election, thus making it easier for unions to campaign without meaningful opposition. Court challenges to the rule are currently pending.

Meanwhile, the board is championing labor efforts to organize small groups of pro-union employees into “micro unions”—say, a men’s shoes department in a retail store. This strategy essentially enables unions to gerrymander a workplace, organizing union supporters while carving out employees who might oppose unionization. The president has also voiced support for “card check” legislation that would effectively replace secret-ballot union elections with signature drives backed by union officials.

This hostility toward speech opposing unionization differs markedly from the NLRB’s treatment of speech that is adverse to employers. For example, the board’s social-media guidelines, issued in memoranda released in 2011 and 2012, aim to shield employees from discipline for posting Facebook comments that disparage their employers, regardless of whether those comments are rude, profane or amount to harassment.

These new initiatives dilute the influence of the significant majority of unrepresented employees who would prefer a nonunionized workplace. Not coincidentally, this offensive comes at a time when union influence and participation in the private sector is at an all-time low. Only 6.6% of private-sector employees were unionized last year, compared with 23.4% in 1974, according to analysis of government data.

Indeed, the NLRB has cited the declining popularity of unions as justification for more intrusive regulation of employer speech. In 2011, claiming that workers were insufficiently apprised of their own self-interest, the board enacted a rule that would compel employers to post a notice reminding employees of their rights to unionize, strike, picket and even wear “union hats, buttons, T-shirts, and pins in the workplace.”

The court of appeals for the D.C. Circuit held that the board was prohibited from conscripting employers into delivering this one-sided message. But a later decision by the same court called into question whether even this modest reprieve for free speech will survive.

It is past time for courts to take a fresh look at the law on speech in the workplace, which benefits unions at the expense of employers and employees alike. Since the New Deal, courts have largely deferred to the NLRB’s judgment of how best to promote free and fair union elections. Too often, though, the board has abused this authority by restricting speech that it determined could unduly influence an employee’s vote.

In the 1947 Taft-Hartley Act, Congress attempted to limit the NLRB’s ability to police workplace speech. But in the decades that followed, the Supreme Court repeatedly ruled that federal interests in “industrial peace,” or reducing perceived inequalities in bargaining power, could trump the constitutional and statutory mandates of free speech. Many of these pro-union decisions are still enshrined in law.

Thus, employers today can be held liable for announcing raises during a union campaign, despite the obvious benefit to employees. Employers must also be careful when predicting the potential costs associated with unions, lest those statements be treated as implied threats to punish employees if they unionize. As a result, employees are less informed about their choices, and unions have a convenient cudgel to use at the bargaining table: They can threaten legal action based on perceived threats or incentives from employers.

The Constitution does not give unions such special protections from the marketplace of ideas. And those concerned with a “corporate takeover” of the First Amendment should recall that Citizens United protected the speech of unions and corporations alike. The same cannot be said for the NLRB, where companies are uniquely disfavored and unions are singled out for special treatment—to the detriment of the employees they purport to represent.

Mr. Johnson is an attorney in Washington, D.C., where he practices labor and employment and appellate law.

Ambushing Employers’ Speech Rights – WSJ.


The Right-to-Work Advantage

More discussion would be welcome!

Luke Hilgemann And David Fladeboe
March 4, 2015 6:51 p.m. ET

Wisconsin will likely become the nation’s 25th right-to-work state within the next week. No longer will the Badger State’s private-sector employees be compelled to join a labor union and pay dues as a condition of employment. Debates over this contentious public policy are usually cast as fights between pro- and antiunion forces—but the real divide is between those who oppose and those who favor faster economic growth.

Consider the economic benefits that right-to-work states enjoy. By nearly any metric they come out on top of their competitors. The clearest evidence is the disproportionate job growth in right-to-work states. According to data from the Bureau of Labor Statistics, from 2003-13 states with such laws increased their employment rolls by 9.5%—nearly three percentage points more than the national average and more than double the growth in non-right-to-work states.

These weren’t average jobs, either. They were good-paying positions with increasing wages. Personal incomes in those states grew 12% more than in states without right-to-work protections during that same 10-year period, according to a 2014 study by the American Legislative Exchange Council.

Labor unions try to rebut these statistics by pointing to their higher top-line wages and salaries. But these simple analyses fail to mention that those earnings are disproportionately in union strongholds in the Northeast, Chicago and on the West Coast, where the cost of living is more expensive than in the right-to-work South and Midwest. It makes sense that those areas would have higher nominal pay.

Once cost of living is considered, right-to-work states have 4.1% higher per capita personal incomes than non-right-to-work states, according to a 2013 analysis by the Michigan-based Mackinac Center for Public Policy.

These better jobs and growing incomes also lead to stronger economic growth. According to data from the Bureau of Economic Analysis, the economies of right-to-work states grew about 10% more than non-right-to-work states between 2003 and 2013. That amounts to billions of dollars in additional economic activity—made possible in no small part by giving employees the simple right to choose whether to join a union.

This disproportionate economic growth is no statistical anomaly. In their book “The Wealth of States,” authors Arthur Laffer, Stephen Moore , Rex Sinquefield and Travis H. Brown found statistically significant economic growth advantages of right-to-work states in every 10-year period dating back to the 1960s.

An even simpler measure of right-to-work’s success is the net migration of citizens to those states with such laws. This “voting with your feet” delivers a simple message: Americans enjoy the benefits that right-to-work provides. According to the American Legislative Exchange Council study, from 2003-13 the population of right-to-work states grew by 3%—nearly quadruple the national average of 0.8%. Non-right-to-work states saw their populations decline by 1.1% over the same period. That is no coincidence. People like more jobs, higher pay and faster economic growth—and they’re willing to move to right-to-work states to find them.

Yet even as convincing as these economic benefits are, they still pale in comparison with the individual freedom that right-to-work laws provide. Employees are allowed to earn a living without being forced to pay union dues and fees. The evidence shows that employees appreciate this right.

Consider Michigan, which in 2013 became the 24th right-to-work state. In the law’s first full year, total union membership fell by 48,000—even as total state employment grew.

Wisconsin’s government employees similarly left unions when given the opportunity in 2011. Nearly 70% of the state’s 70,000-member state employees union have since chosen to leave. The powerful American Federation of Teachers and the National Education Association saw their ranks decline by more than 50% and 30%, respectively.

That so many members dropped their union membership at the first chance demonstrates that they were being forced to give some of their money to organizations they did not support. Before right-to-work laws, their only choice would have been to quit their jobs.

Right-to-work also ensures that individuals are not forced to support political candidates or causes they disagree with. While 38% of union household members voted for a Republican candidate in the U.S. House of Representatives in 2014, an analysis by the Center for Responsive Politics revealed that more than 90% of union political spending backed Democratic candidates. Giving employees the freedom not to contribute financially to unions ensures they won’t be forced to unwittingly support politics and policies they don’t support.

Unions are still free to organize employees in right-to-work states. Legislation like that in Wisconsin still allows for collective bargaining on behalf of employees. The only difference is that unions can’t coerce them into joining.

Wisconsin lawmakers should be lauded for their leadership in seeking to become the nation’s 25th right-to-work state. The benefits are overwhelming: faster job growth, rising incomes, a stronger economy and greater individual freedom. Right-to-work is right for everyone—and not only in Wisconsin.

Messrs. Hilgemann and Fladeboe are, respectively, the CEO and Wisconsin state director of Americans for Prosperity.