CEI Today: Stealth Unionization, Payday Loan Report, CEI at CPAC & more

Monday, February 6, 2012
In the News Today

Media Contacts: Christine Hall 202.331.2258 Nicole Ciandella 202.331.2773 CEI Experts by Issue Advancing Capitalism Constitutional and Legal Issues Energy and Environment Finance and Entrepreneurship Health and Safety Labor Nanny State Regulatory Reform Tech and Telecom Trade and International Transportation   Also featuring... CEI IN THE NEWS THE "FRED WEEKLY" February 2, 2012: McDonald's and Pepsi's Different Response to Pressure CEI Podcast for February 2, 2012: The FDA’s Latest Power Grab Fellow in Consumer Policy Studies Michelle Minton breaks down the FDA’s behind-the-scenes push to regulate dietary supplements nearly as strictly as prescription drugs. >Listen at Libertyweek.org

Breaking news... STEALTH UNIONIZATION - VINCENT VERNUCCIO CEI.org: CEI, Yankee Institute Push Back Against Stealth Unionization Campaign The Service Employees International Union (SEIU) is trying to unionize home health care workers in Connecticut by stealth—and Governor Dannel P. Malloy is helping them. In response, the Competitive Enterprise Institute and Yankee Institute for Public Policy together this week launched a mail campaign to inform unsuspecting workers about SEIU’s efforts, and help them make an informed decision. SEIU has already carried out such stealth tactics in other states. Here’s how it works: A pro-union governor issues an executive orders defining any health care workers who serve clients who receive any sort of government assistance as state employees who can be unionized. The union and its allies avoid media and public attention. The only notice home health care workers receive concerning a union election is a nondescript mailing asking them if they wish to join the union. Under this process, the union only needs to receive a majority of returned cards—not a majority of all workers—to be recognized as those workers’ exclusive bargaining representative. > Read about the just-launched mailing to home healthcare workers at CEI.org   > Interview Vincent Vernuccio, CEI Labor Policy Attorney PAYDAY LOANS - JOHN BERLAU CEI OnPoint: The 400 Percent Loan, the $36,000 Hotel Room, and the Unicorn So-called “payday loans” are roundly vilified by many politicians and activists, including the Obama White House.  But a new report from the Competitive Enterprise Institute finds many “dubious arguments” are made about the true costs of such loans. CEI’s John Berlau explains why political attacks on such loans are both wrong and harmful to the very people they’re aimed at protecting. The Obama administration and other politicians who use a “destructive myth of 400 percent interest” use a flawed method of calculating interest that makes an apples-and-oranges application of annual percentage rate (APR) to loans of a much shorter duration than one year.  > View the OnPoint, The 400 Percent Loan, the $36,000 Hotel Room, and the Unicorn >Interview John Berlau, Director of CEI's Center for Investors & Entrepreneurs ENERGY & DIRTY POLITICS - MYRON EBELL Globalwarming.org -Sierra Club Takes $25 Million from Natural Gas To Attack Coal Myron Ebell discusses news that the Sierra Club got $25 million to attack the coal industry:  Bryan Walsh in Time Magazine broke the big story this week that the Sierra Club received over $25 million from the natural gas industry to serve as a corporate shill for the natural gas industry’s attacks on the coal industry.  Walsh wrote: “TIME has learned that between 2007 and 2010 the Sierra Club accepted over $25 million in donations from the gas industry, mostly from Aubrey McClendon, CEO of Chesapeake Energy—one of the biggest gas drilling companies in the U.S. and a firm heavily involved in fracking—to help fund the Club’s Beyond Coal campaign. Though the group ended its relationship with Chesapeake in 2010—and the Club says it turned its back on an additional $30 million in promised donations—the news raises concerns about influence industry may have had on the Sierra Club’s independence and its support of natural gas in the past.” > Interview Myron Ebell, Director of CEI's Center for Energy and Enivornment   CEI AT CPAC! CEI is a co-sponsor of this year’s Conservative Political Action Conference (CPAC), Thursday, February 9 to Saturday, February 11 in Washington, D.C. CEI will have a table in the exhibit hall of the hotel, the Marriot Wardman Park Hotel in Washington, DC.  Please stop by booth 1509 and say hello if you are attending CPAC. > Book CEI experts on Radio Row. > See CEI Speakers at CPAC: CPAC panel featuring Sam Kazman: The Red Tape War: How the Regulatory Burden and Growing Nanny State Threaten Prosperity Thursday, February 09, 2012 10:00 - 11:00 am Room "Wilson C" CPAC panel featuring Vincent Vernuccio: Return of Big Labor: What Can We Learn from Wisconsin & Ohio? Thursday, February 09, 2012 11:15 am – 12:00 pm Marshall Ballroom CPAC panel featuring Fred L. Smith, Jr. & Myron Ebell: The Obama EPA's Green Assault on American Jobs Thursday, February 09, 2012 4:15 - 5:00 pm Marshall Ballroom CPAC panel featuring Ryan Radia: Digital Liberty: Tying Government's Hands on Tech, Telecom, and the Web Friday, February 10, 2012 2:30 - 3:30 pm Maryland Room Visit Conservative.org/cpac for the full conference agenda. Ten Thousand Commandments By Wayne Crews Welcome to The Other National Debt -- The Cost of Regulation -> Read Today's Decrees CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government.  For more information about CEI, please visit our website, cei.org, and blogs, Globalwarming.org and OpenMarket.org.  Follow CEI on Twitter! Twitter.com/ceidotorg.

CEI - Stealth Unionization Campaign Exposed by Free Market Groups

Free Market Policy Organizations Push Back Against Stealth Unionization Campaign

Workers Alerted to Union Shenanigans in Statewide Mailing

Washington, DC, February 6, 2012 – The Service Employees International Union (SEIU) is trying to unionize home health care workers in Connecticut by stealth—and Governor Dannel P. Malloy is helping them. In response, the Competitive Enterprise Institute and Yankee Institute for Public Policy together this week launched a mail campaign to inform unsuspecting workers about SEIU’s efforts, and help them make an informed decision.

SEIU has already carried out such stealth tactics in other states. Here’s how it works: A pro-union governor issues an executive orders defining any health care workers who serve clients who receive any sort of government assistance as state employees who can be unionized. The union and its allies avoid media and public attention.

The only notice home health care workers receive concerning a union election is a nondescript mailing asking them if they wish to join the union. Under this process, the union only needs to receive a majority of returned cards—not a majority of all workers—to be recognized as those workers’ exclusive bargaining representative.

For example in Michigan, SEIU won representation over 45,000 health care workers with only 20 percent of eligible voters participating. Most of those workers were unaware of the unionization effort and did not sign or return their cards. For SEIU, this was very profitable. Since 2006, it has collected $28 million in compulsory union dues from home care workers in Michigan. Now it wants to replicate that in Connecticut.

Competitive Enterprise Institute labor policy experts offered the following comments.

CEI Policy Analyst Trey Kovacs: “Forced unionization of home health and day care workers shows government at its worst. Across the nation, union political influence has swayed elected officials such as Gov. Malloy to divert tax dollars intended to cover medical expenses for their states’ poor residents to enrich union coffers instead.”

CEI Labor Policy Counsel F. Vincent Vernuccio: “Every worker in the private sector should have the right to join or not join a union. SEIU’s ploy of stealth unionization aimed at denying workers a secret ballot brings its forced unionism agenda to a new low. It shows a union that is more concerned with collecting mandatory dues than with doing what is in the best interest of workers. CEI is privileged to be working with the Yankee Institute to warn home healthcare providers of SEIU’s deplorable tactics.”

CEI and Yankee Public Policy Institute are providing home health care workers in Connecticut a public notice mailing to educate them about SEIU’s stealth unionization campaign and the costs that unionization would impose.

► The mailing can be found on CEI’s Labor Policy website: www.workplacechoice.org.

WFI Public Comment Letter to NLRB

I would like to bring your attention to the Workforce Fairness Institute (WFI)'s public comment letter to the NLRB on its purposed rule changes to make union elections into "quickie elections."

To view the letter, click here. 

----------------------

August 8, 2011

 

Wilma B. Liebman

Chairwoman

National Labor Relations Board

1099 14th Street, NW 

Washington, DC 20570-1000 

 

Docket ID: NLRB-2011-0002 Agency: NLRB RIN: 3142-AA08

 

Dear Chairwoman Liebman,

 

The Workforce Fairness Institute (WFI) is an organization committed to educating workers, their employers and ordinary citizens on important issues affecting the workplace.

 

We respectfully submit this comment in opposition to the National Labor Relations Board’s (the Board or NLRB) proposed rule, published in the Federal Register on June 22, 2011, which would, if implemented, dramatically change the Board’s representative case law and procedures.

 

At a time of near double-digit unemployment and increasing economic anxiety, the proposed rule would further undermine business confidence in the ability of the NLRB to deal fairly and neutrally on issues involving labor and management.  It represents a sweeping change in Board law and procedures, which would tip the election process decidedly against legitimate employer interests adding to a regulatory climate that will discourage domestic business investment.

 

The Board’s proposal shortens the period of time from a petition to an election from a current median number of 38 days, with 95% of all elections taking place within 56 days, to as little 10 to 14 days.  It flips the nature of the pre-election hearing, moves to after the election the resolution of most pre-election issues, and changes the Board’s standard of review for post-election challenges and objections from a de novo review of the record to a discretionary standard based on compelling circumstances.  Currently, representation elections generally occur within five to seven weeks of a petition’s filing and unions win nearly 68 percent of them.  By all indications, the Board’s election process that has been in place for decades under both Republican and Democratic Administrations has worked exceptionally well.  This raises the question: Why is there a sudden need for such sweeping changes?  The majority’s proposal makes no effort to establish a predicate for it.

 

While the Board cites election delay as the motivation for the proposal, it never defines when a reasonable period of time between a petition and an election ends and delay begins.  The Board fails to cite cases where unacceptable delays have occurred and the reasons for them.  Since delays occurs in a relatively small number of election cases, it is difficult to avoid concluding that the proposal is a rushed effort to achieve a result long favored by organized labor, but without regard for workers’ and their employers’ rights under the National Labor Relations Act (Act).

 

The election rule, if implemented in its current form, will stifle, if not eviscerate, the ability of an employer to express its views on unionization and the right of employees to hear those views and make an informed choice.  In many instances, the only story the employee will have heard is the union story.  While that may be perceived by the current Board as promoting collective bargaining, it does so at the expense of workplace democracy.

 

The decision whether to be unionize, however, is one of the most important workplace decisions a worker will make in his or her time on the job.  As a result, when workers vote for union representation, the election should be preceded by a full and fair exchange of information on the issue from the union, the employer, fellow employees and others.  The NLRB’s current pre-election period allows for such an exchange, for the “robust debate” on the issues dividing labor and management that Congress intended.  The proposed rule does not.

 

It would be considered undemocratic if in a political election only one party was given the opportunity – or the predominant opportunity – to speak with voters and the ability to set an election date only days away without prior notice to the other side.  Shouldn’t the same principles that guide our political democracy guide the workplace democracy that is guaranteed workers under the Act?

 

The proposed rule gives union bosses who are familiar with Board law and procedures an unlimited amount of time to organize and prepare for an election, while it gives small businesses mere days to respond.  The employer, who may never have heard of the NLRB much less be familiar with some of the Board’s arcane election law principles, will have seven days to prepare for an adversarial hearing.  The result, as pointed out by Board Member Brian Hayes in his dissent, is likely to deprive smaller employers of legal representation and due process.

 

The Board has long favored the informal resolution of labor and management disputes.  The NLRB’s current election procedures reflect that preference; they foster the informal resolution of pre-election disputes.  Last year, this resulted in 92% of all elections proceeding on the basis of pre-election agreements.  The proposed rule threatens to undermine this success, while imposing on employers a rigid obligation to identify all pre-election issues in a maximum time of seven days of the petition’s filing.  And at the pre-election hearing, the employer, not the Board’s agent, will be responsible for developing a full record.  To suggest that this new procedure is analogous to the summary judgment procedures of the Federal Rubles of Civil Procedure ignores the time and the discovery available under those rules and smacks of either antipathy, or a stunning lack of sensitivity, for all that is involved in operating a financially successful enterprise.

 

The Board’s current election procedures are logical and uncomplicated.  The proposed rule is not.  Leaving until after the election the resolution of issues some of which will determine whether the election should have taken place to begin with will be a waste of the Board’s and the parties’ time and financial resources.  Similarly, leaving until after the election the determination of a voter’s supervisory status will result in additional elections being set aside or, at least being contested for alleged coercive supervisory conduct.  A similar result will follow leaving eligibility issues involving up to 20% of the electorate until after the election.  A large number of Board elections are decided by a narrow margin of voters.  With all of these uncertainties left without a final resolution, it is fundamentally unfair to impose on the employer the risk that if he or she contests the election result, they imperil normal business operations.

 

It seems clear from the witnesses who testified at the Board’s public hearing, which concluded with Professor Kate Brofenbrenner, that the NLRB is of the view that employer unfair labor practices necessitate a shortened period of time between a petition and an election.  There is simply no reliable evidence, however, to support that conclusion or that workers are rejecting unionization because of employer intimidation or other illegal activities.  Brofenbrenner is well-known for her research which overstates beyond credulity employer threats of plant closings during a union organizing campaign.  A former union organizer herself, Brofenbrenner based her conclusions on the anecdotal information she received from fellow union organizers.  She apparently avoided management interviews believing they would be less reliable.  The study she and Professor Dorian Warren testified about during the Board’s July 19 hearing references Bronfenbrenner’s flawed prior research and bases its additional conclusions on union charges filed, not unlawful labor practices found, much less complaints issued.  Since roughly 65% of all charges are dismissed after an investigation as being without merit, the study’s conclusions are invalid.  The report reveals in one column of Table 1 that only 25% of the charges resulted in unfair labor practice findings, but makes no effort to adjust its conclusions for that fact.  In addition, there is no evidence that the elections studied constituted a representative sample.  The charges studied were filed in connection with 154 elections conducted in 2003.  These elections were taken from a universe of 558 elections held over a four year period, which were selected based on undisclosed criteria from a universe of 1000 randomly selected elections.

 

Simply put, employer unfair labor practices do not skew election results against the union as has been alleged by a few of the speakers.  Instead, when workers reject unionization in a secret ballot election it is because they have weighed the pros and cons of unionization and have determined it is not in their own best interests.  Having an adequate period of time between a petition and an election gives workers a fair opportunity they make that determination.

 

We take strong issue with the proposed rule’s Excelsior List revisions that require employers to provide labor bosses with proprietary employee contact information such as personal e-mail addresses and telephone numbers.  This information, to the extent it is provided, is generally given to the employer in confidence to be used in the event of an emergency.  The employee has a right to have this information kept private unless the employee expressly agrees otherwise.

 

Once again, we want to emphasize, beyond the immediate negative consequences on the principles of workplace democracy, the “quickie” elections being proposed will place additional costs and burdens on small business owners who lack the resources and legal expertise to navigate and fully comprehend the Board’s election processes.  In this struggling economy, the Board should avoid making sweeping regulatory changes that will put this critical element of our economy further at risk.  The proposed changes in the Board’s election law and procedures will result in more unemployment as scarce business dollars will be used to comply with its new and complex requirements.

 

We urge the Board to reconsider this proposal and the haste with which it is pursuing it.  While we  recognize that a Board majority is expected to reflect, to some degree, the policy preferences of the President who appointed its members, to sweep aside decades of Board election law and procedures in this fashion for the perceived benefit of organized labor undermines the agency’s legitimacy as a neutral instrument of government charged with promoting stable labor-management relations.

 

Sincerely,

 

Fred Wszolek 

Workforce Fairness Institute

NRN - Must Reads from July 21, 2011

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• The trouble with the debt ceiling debate
• McConnell's 'Plan B' is opposed by House Democrats
• Big Government has led to a 'recovery in name only'
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Quote of the Day

Today's quote of the day comes from Gordon Tullock:

[I]ndividuals who enter a supermarket and purchase items of their choice are assumed, when they enter the voting booth, to vote not for the politicians and laws that will benefit themselves, but for politicians and laws that will benefit the nation as a whole. People in the supermarket mainly buy [the goods] that benefit themselves and their families. However, when individuals become politicians, a transformation is assumed to occur so that a broader perspective guides them to make morally correct decisions rather than follow the course of behavior that pleases the interest groups that supported them or the policies that may lead to reelection.

Read more at NetRightDaily.com.

National Review: Quickie Elections: Rigging The Rules To Favor Big Labor

Quickie Elections: Rigging The Rules To Favor Big Labor

National Review Online

Peter Schaumber

June 13, 2011

http://www.nationalreview.com/corner/269494/quickie-elections-rigging-rules-favor-big-labor-peter-schaumber

After the forces of organized labor lost their battle for mandatory card check in Congress, it was widely anticipated that the board would give them the nextbest thing — “quickie elections,” which are held seven to ten days after a petition is filed. Like card check, quickie elections rig the rules to favor a union outcome. With NLRB chairman Wilma Liebman’s term ending in ten weeks, we may well see something issued soon.

Imagine a political election in which only one party were given the opportunity to tell voters its side of the story, and could set an election date only days away, all without prior notice to the other side. Sound unfair? This is the model the Obama board intends to impose on American business for union-representation elections.

One of the cardinal roles of the NLRB is to protect employees’ free and informed decisions on the issue of union representation. Consistent with that goal, the board has over many decades arrived at election procedures that allow for an electionwindow of three to six weeks after a petition is filed. This permits the board to conduct a statutorily required hearing if the parties are unable to reach agreement on certain pre-election issues and to complete other pre-election requirements. The window also gives management the opportunity to learn about the union and either support it or assemble a case against it and make its reasons known to its workers. Organized labor abhors this opportunity because employees are less likely to vote for union representation if they are given the opportunity to consider both sides.

The current election procedures work. Under this system, union density in the private sector reached 35 percent in the1950s, when the election window was roughly the same or a bit larger.

Big Labor wants the rules of the game changed.

For variety of social, political, and economic reasons entirely unrelated to the board and its election procedures, union density has fallen below 7 percent for the first time. But instead of looking in the mirror and considering changes to the predominant combative, zero-sum union model that was a better fit for the 1930s and ’40s than for the 21st century, Big Labor is clamoring for its partisans at the NLRB to change the election rules to favor a union outcome. And its partisans at the board are prepared to do just that.

Here’s how it will work if the board has its way: Without the employer’s knowledge, the union will secretly collect employee signatures on a petition, covertly telling the employees they solicit what the union can do for them. After achieving the requisite number of signatures, the union will file the petition, catching the employer and the remaining employees by surprise. The employer will be faced with election only days away with little opportunity to inform itself about the union or the issues involved, and without the ability to express itself on the issue of unionization to its employees. Employees who were unaware of the union solicitations will find themselves in a similar situation.

As justification for such a sweeping change, the board will undoubtedly argue that any election delay only increases the likelihood that employers will commit unfair labor practices depriving employees of their free choice. But an orderly election process fully consistent with the statute does not constitute “delay,” and the same allegation can be made against unions. Furthermore, there is absolutely no evidence that an increased incidence of employer unfair labor practices is contributing to union decline. As mentioned, the election window was roughly the same or a bit larger in the 1950s when union density in the private sector was 35 percent; and the available board data shows a dramatic decline in the number of unfair-labor-practice complaints filed, from 6,230 in 1980 to 1,243 in 2010.

The board may point to Canadian provincial law, which provides for “quickie elections.” But Canadian provincial law does not have to satisfy the National Labor Relations Act or the U.S. Constitution.

Congress amended the NLRA in 1947 to “insure to employers and labor organizations full freedom to express their views to employees on labor matters,” and in so doing, according to the Supreme Court, was “implement[ing] the First Amendment.” According to the Court: “We have characterized this policy judgment . . . as ‘favoring uninhibited, robust and wide open debate on labor disputes,’ stressing that ‘freewheeling use of the written and spoken word’ . . . has been expressly favored by Congress and approved by the NLRB.” Quickie elections subvert this statutory goal.

Over the last 30 years or more, board law has changed when political control of the boardchanged. But what we are witnessing today from the Obama board goes far beyond what has occurred in the past. The board majority readily ignores statute language and congressional intent and trashes decades of board law and procedure with the sole goal of augmenting union power, even at the expense of workers’ rights. To continue to refer to this board as a “neutral independent agency” gives it legitimacy it no longer deserves.

—Peter Schaumber is a former chairman of the National Labor Relations Board.