The Employee Free Choice Act: 'When there's no more room in hell...'

The hallucinogenically-named Employee Free Choice Act is a bill that, like George Romero's flesh-eating zombies, just refuses to die.

As the DC rumor-mill has it, EFCA proponents realize that taking away the secret-ballot isn't too popular and is hurting their hopes for passage.  However, the other main component of the job-destroying bill is equally dangerous for employers and their employees: Binding arbitration.

What is binding arbitration?

It's a process that, under EFCA, allows for a federally-appointed arbitrator to dictate what would be spelled out in a union contract.  This would include things like forced union dues (where legal) from employees, super-seniority for shop stewards, restrictive work rules, management rights, as well as wages and benefits.

Now, you might be wondering: What's so bad about binding arbitration?  I mean, arbitrators are pretty reasonable people, right? They don't make bad decisions, do they?

Well, our friends over at the Truth About EFCA blog have a great example of a bone-headed decision that one arbitrator in a recent case made::

A federal judge has ordered Illinois Central Railroad Co. to reinstate a conductor who spent 16 months in federal prison for embezzling union funds (United Transp. Union v. Illinois Central R.R. Co., N.D. Ill., No. 08 CV 4001, 3/16/10). Enforcing an earlier arbitration award under the Railway Labor Act, Judge Samuel Der-Yeghiayan’s ruling also determined that the company has no obligation to provide back pay for the period of William Miller’s imprisonment.


Miller began work as a machinist for Illinois Central and was represented by the International Association of Machinists (IAM) Local 498. During a two-year term as secretary-treasurer of the IAM local union, Miller embezzled $63,000 from treasury funds. In November 2005, he pled guilty to charges of embezzlement and obstruction of justice. Miller claimed that he notified his supervisor of his felony conviction, in accordance with company “Rule H.” The railroad asserted that it had received no notification and fired Miller for violating the company rule. He entered prison in July 2006.


By this time Miller was working as a conductor represented by the United Transportation Union (UTU). His claim for reinstatement with back pay went to arbitration before the Public Law Board (PLB). The PLB draft decision, dated July 18, 2007, ordered his reinstatement with back pay. Illinois Central sent a reinstatement letter in August 2007 ordering Miller to report to work within 15 days. However, since the conductor was not released from prison until early November 2007, he failed to meet the company’s deadline and was refused reinstatement. The UTU filed suit to enforce the arbitration award.


The effective date of the PLB award was central to the case. Although the draft decision was issued in July 2007, Judge Der-Yeghiayan found that the PLB award was not effective until it had been signed by two of the three board members. The award received the required two signatures on November 30, 2007 – a date when Miller was out of prison and available to work. Upholding the arbitration award, the judge ordered the conductor’s reinstatement with back pay for the period following his release from prison. Der-Yeghiayan rejected the UTU’s argument that the award intended Miller to receive back pay for the period of his incarceration when he was unavailable to work.

Hmmm. Let's see if we can summarize this:  1) Union boss steals money from union (IAM), 2) claims to have told supervisor of conviction, but was fired anyway; 3) goes to prison, 4) wins arbitration ordering  reinstatement with backpay, 5) fails to make it back by reinstatement date (because he was still in prison), 6) UTU sues to enforce the arbitration award and argues that back pay should include the time in prison and (drumroll please)... 7) guy gets job back, with back pay (except for the time in prison).

Now, under EFCA, imagine federally-appointed arbitrators controlling private enterprise.

Would you trust an arbitrator with your business?

We think not.
__________________

"I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776

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EFCA UPDATE: Compromise on Employee Free Choice Act is still Poison to Small Business

"There are two sides to every issue: one side is right and the other is wrong, but the middle is always evil….In any compromise between food and poison, it is only death that can win. In any compromise between good and evil, it is only evil that can profit."--Ayn Rand.

Following the New York Times announcement yesterday that Democrats are ready to drop the contentious card-check provision from the controversial and misleadingly-named Employee Free Choice Act, the Times is doing a follow-up piece today: ‘Card Check’ Concession Doesn’t Mollify Small Business.

In addition, according to CBS News, the story that ran in the Times may have been just floating a trial balloon.

But representatives on both sides of the issue signaled in interviews with Hotsheet Friday that they are skeptical of the Times report. Josh Goldstein of American Rights at Work said in an interview that it is "premature to make any assumptions about what's going on in negotiations when the people who are in those negotiations are clearly stating that there is no deal."

"As far as I know, majority sign up is still on the table," he said. "And we're still fighting for it."

And Mark McKinnon of the Workforce Fairness Institute, a business group, told Hotsheet, "I don't think it's so much a compromise as it is a trial balloon."

Whether or not card-check (aka "No-Vote Unionization") makes it into a final bill is still uncertain. However, the internet rumor mill has it that a compromise (if there is any) may include:

• 5-10 day elections following a union's petition (as opposed to the current 42 days)
• Banning employer-conducted so-called "captive audience meetings" or, absent that...
• Requiring unions be given equal time in a company for persuading employees

According to the Times follow-up piece this morning:

“A quickie election in 5 to 10 days puts our guys at a huge disadvantage,” says Brad Close, National Federation of Independent Business' (N.F.I.B) vice president for public policy. “They will be running around, trying to find a labor counsel to make sure that they run elections the correct way; they’ll have no time to talk to their employees. You’ve got to understand: the union organizers will have been talking to employees on their own, for months, probably, leading up to when this election gets called.” (Unions, of course, insist that the playing field is irredeemably tilted toward management, who can begin anti-union politicking the day an employee is hired.)

Molly Brogan, spokeswoman for the National Small Business Association (N.S.B.A.), adds that potential provisions that would grant unions access to company property for the campaign or limit a firm’s ability to discuss “the realities of unionization” are “nonstarters for the small-business community.”

In all cases, the one thing that has stayed consistent is union bosses' insistence on including the job-destroying binding arbitration in any final bill.

“Our members hate the idea of losing a secret ballot election, but if you want to see their blood really boil, then explain to them the arbitration part of the bill,” Mr. Close says. “To them, it’s like turning the keys of their business over.”

Stay tuned to LaborUnionReport.com, as this fight is far from over.

DEMS DEAL BLOW TO UNION BOSSES, DROP CARD-CHECK

Democrats, according to the New York Times, have dropped the card-check provision from the job-destroying Employee Free Choice Act. The Times reports:

"A half-dozen senators friendly to labor have decided to drop a central provision of a bill that would have made it easier to organize workers."

The Huffington Post (which has its contacts with union bosses) is stating:

"Moderate Democrats have forced a key compromise to the Employee Free Choice Act, which removes one of the labor community's most cherished provisions from the bill."

The compromise legislation, as described to the Huffington Post, will contain several major labor priorities including requiring shorter time periods for a union election and containing some form of binding arbitration to prevent employers from dragging out a contract negotiation process. The measures, according to AFL-CIO spokesman Eddie Vale, will let workers choose to join a union without intimidation, ensure that those who join a union get a first contract, and institute meaningful penalties for violations of labor law.

"No matter what, this is still HUGE labor law reform," emailed one union official.

"There is no official or final deal, negotiations are still ongoing," said another union hand. "We're going to pass a bill that is the biggest reform of labor law since the Wagner Act."

Still, the removal of the card-check provision is a shot in the gut to a labor community that saw in the Democratic Congress and the Obama White House, the conduits they needed to pass their legislative priorities. While Sen. Al Franken's seating in Minnesota provided the party with a 60th caucusing member to beat back a GOP filibuster attempt, moderates like Sens. Blanche Lincoln (D-Ark.), Diane Feinstein (D-Calif.), Arlen Specter (D-Penn.) and others had expressed skepticism, if not downright opposition, to EFCA's original incarnation.

In conversations with reporters, union officials are insisting that this is the natural process by which a bill becomes law. They also aren't officially dropping the conversation on a majority sign up.

What this means, dear readers, is that union bosses are still pushing binding arbitration which, as we've written, puts workers on the path to serfdom:

Under the oxymoronically-named Employee Free Choice Act, once binding Arbitration kicks in, if employees had been tricked into unionization (under EFCA's no-vote unionization provision) and the government imposes its contract on the employer and employees, employees..:

1) CANNOT vote to ratify or reject the government contract
2) CANNOT modify the government contract
3) CANNOT kick the union out (for two years)
4) and, perhaps most importantly, CANNOT strike in protest.

Note: A strike is the collective withholding of labor and, if workers cannot withhold their labor, then they effectively become economic serfs.

Employees will be voiceless, powerless and left with two options: Either keep their mouths shut and accept it, or quit as individuals.

Under this Hobson's Choice, many companies will likely lose their best and brightest employees, as individual workers realize the loss of their personal freedoms. That is, until the government outlaws the practice of resigning employment too.

According to the Times' report:

“This bill will bring about dramatic changes, even if card check has fallen away,” said an A.F.L.-C.I.O. official who insisted on anonymity.

The official said the revised bill achieves the three things organized labor has been seeking.

“Our goals,” the official said, “have always been letting employees have a real choice, having real penalties against employers who break the law in fighting unions, and having some form of binding arbitration to prevent employers from dragging their feet forever to prevent reaching a contract.”

Despite this huge development, the fight against this job-destroying legislation is not over, as "labor leaders acknowledged an additional hurdle: two powerful Democrats, Edward M. Kennedy of Massachusetts and Robert C. Byrd of West Virginia, are seriously ill."

Be sure to stay tuned to LaborUnionReport.com through the weekend, as we will be posting articles as they come in. In addition, be sure to check the site for additional articles on the government's efforts to nationalize our health care system.

With Best Wishes for a Great Weekend!

EFCA's Binding Arbitration: Putting Workers on the Path to Serfdom

The Wall Street Journal published an op-ed on the moronically-monikered Employee Free Choice Act which was penned by Reason Magazine's Shikha Dalmia. Amongst Ms. Dalmia's several points on why binding arbitration is bad public policy, there are several worth noting:

This process is supposed to install a contract expeditiously. But a review of 29 arbitration cases in 2005 and 2006 by the Michigan-based Mackinac Center for Public Policy found that the average time involved in a case was almost 15 months -- not the four-and-a-half months that the law prescribed, defeating its whole purpose. Moreover, because an arbitration board doesn't have to live with the consequences of its decision, it has no reason to come up with a workable solution -- just one that is politically expedient.

Compulsory arbitration also nudged other Michigan cities, including the working-class towns of Hamtramck and Highland Park, into bankruptcy. In 1999 an arbitration panel awarded Hamtramck police officers $2.1 million in pay raises and back pay, pushing it into state receivership. Under receivership, which is only used in extreme situations, the state government takes over the city's finances and appoints its own manager to run the city. Hamtramck was ultimately forced to impose a combination of service cuts and tax increases, all of which accelerated the exodus of its residents. Highland Park, wishing to avoid similar arbitration, gave its public safety officers raises it couldn't really afford and was also forced into receivership.

Michigan's experience is hardly unique. Former Massachusetts Gov. Michael Dukakis also tried to limit public-sector compulsory arbitration during his first term. In 1977, Mr. Dukakis argued that compulsory arbitration "has removed legitimate management prerogatives in the area of staff assignments, (and) transfers from the control of municipal officials at a time when they are under severe pressure to improve their management and make savings." Mr. Dukakis failed to stop compulsory arbitration, but two years later Massachusetts voters approved a ballot initiative that effectively scrapped it.

Should EFCA pass, the costs of compulsory arbitration in the private sector will dwarf those in the public sector. That's because businesses, unlike government, can't just bill taxpayers to pay off unions. They have to compete. [Emphasis added.]

One point that Ms. Dalmia did not point out, however, is the fact that binding arbitration also puts workers onto the path to serfdom:

Under the oxymoronically-named Employee Free Choice Act, once binding arbitration kicks in, if employees had been tricked into unionization (under EFCA's no-vote unionization provision) and the government imposes its contract on the employer and employees, employees..:

1) CANNOT vote to ratify or reject the government contract

2) CANNOT modify the government contract

3) CANNOT kick the union out (for two years)

4) and, perhaps most importantly, CANNOT strike in protest.

Note: A strike is the collective withholding of labor and, if workers cannot withhold their labor, then they effectively become economic serfs.

Employees will be voiceless, powerless and left with two options: Either keep their mouths shut and accept it, or quit as individuals.

Under this Hobson's Choice, many companies will likely lose their best and brightest employees, as individual workers realize the loss of their personal freedoms. That is, until the government outlaws the practice of resigning employment too.

As a post script, on the Reason website, one of the commenters gave the following analogy:

The binding arbitration provision only applies to the first contract where the union is most vulnerable to bad faith tactics by the employer.

That's like saying the new "Freedom to Rape" law you're advocating only allows men to rape freely ONCE, since that first time is the time when women put up the toughest fight. ["In bad faith."]

The Ironic Problem with Employee (Not-So) Free Choice Act

The Seattle Times has posted two Letters to the Editor that, in an interesting twist of irony, expose the fallacy of the offensively-named Employee Free Choice Act (EFCA). While both letters were in response to a June 18th Seattle Times editorial entitled "Strike won't fly at Boeing if machinists want to keep 787 production here," the responses posted explain one of the main problems with EFCA.

In the first letter, a Seattle resident named Rob Snyder argues that the right to strike is his right:

I will give up my right to strike when corporate executives tie my total compensation to theirs.

In the second letter, another Seattle resident named Tanya Stock uses the editorial to opine that workers need EFCA, clearly (and ignorantly) missing the point that Boeing workers are already unionized and EFCA would have no impact on them--nor does it have any bearing to the topic of the original editorial.

• NOTE: It would appear that Ms. Stock is part of the eco-friendly union coalition and gets her talking points directly from the AFL-CIO, SEIU, or one of the other union front groups, since there is not one original statement coming from her "letter."

The ironic part about posting both letters to the editor is that, besides the controversial card-check (aka the no-vote unionization) provision of EFCA, there is a lesser known provision to the bill called binding arbitration.

Bnding arbitration is the process where, after a mere 120 days following the start of negotiations between an employer and union, if there is no agreement reached, the federal government can step in and have a government-imposed arbitrator dictate what the union contract will be.

Now, besides the inherent problems with the freedom to contract (or not) argument, as well as the overall fascist nature of the government-imposing terms and conditions of employment, a lesser realized side effect of binding arbitration will be that workers themselves will be losing some basic human rights as a result of the binding arbitration section of EFCA.

First, under the binding arbitration provision of EFCA, workers will NOT be able to vote for or against a government-imposed contract. Now, since the National Labor Relations Board recently stated that unions can lie to members about the contents of a proposed contract, the right to ratify a contract (or not) probably doesn't mean much anyway.

However, the second point where EFCA absolutely takes away a fundamental human right is the fact that, under a government-imposed contract, workers lose their right to strike.

This means that, if workers are unionized based on cards that were signed under false pretenses, then forced into a government-imposed contract that does not meet what the union organizer promised them in order to get their signatures, workers not only cannot vote to accept or reject the contract, they cannot strike either. Their only choice will be to work under terms they had no choice to accept (or deny), or quit their employment.

In other words, under EFCA, workers will be tricked and trapped.

Doesn't sound too much like "free choice" now does it?