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The Courts could destroy even MORE of our rights while we wait for Congress to fix Taft-Hartly

1947 CIO rally at Madison Square Garden
1947 CIO rally at Madison Square Garden

1947 Rally at Madison Square Garden

As I promised in yesterday’s post, here are a few examples of how things are getting worse, the longer we wait for Congress to fix (or repeal) the Taft-Hartley Act.

More states have passed so-called “Right to Work” laws. Nevermind what they’re called, RTW laws restrict employers’ rights: they prohibit employers from voluntarily agreeing to “agency fee” clauses in their union contracts. Last year, Indiana and Michigan joined the list of states that restrict employers’ rights; and the American Legislative Exchange Council (ALEC) is clearly still trying to spread their “model legislation” nationwide.

The Supreme Court will soon decide two cases that could further limit employers’ rights in their dealings with employee unions. Read the New York Times article here.

  • The first case will decide whether employers have the right to agree to remain neutral during a union organizing drive. (Shouldn’t employers be able to allow their employees to make their own decisions about union representation? In many worksites, unions and employers work cooperatively because they share the same goals. Why should federal law require the employer-union relationship to be adversarial, rather than cooperative?)
  • The second case attempts to impose “Right to Work” on the whole country through a court decision — rather than leaving it up to each state to decide for itself whether to limit employers’ rights.  (What happened to that old Tenth Amendment/states’ rights principle?)
  • The second case also challenges whether a state government has the right to allow union representation of home-care workers who are paid by Medicaid.  (Again: are we about to see the federal court system restrict a state government’s exercise of reserved powers?)

Taft-HartleyAnd then there’s Boeing. Just my personal opinion, but… it sure seems to me like Boeing is setting up another chance to litigate all those legal theories it came up with in 2011, back before the Machinists asked the NLRB to drop its complaint about Dreamliner production. The basic question at issue: whether a company has the right to relocate jobs in retaliation for (legally protected) union activity. That 2011 complaint was part of “a very long line of cases that the NLRB has been pressing since the 1940s, when employers began moving work from unionized workplaces in the industrial Northeast to non-unionized workplaces in the Southeast and later the Southwest.” Just think what the impact on unions could be, if Boeing persuades the courts to agree with its legal theories. (Read more NHLN coverage of Boeing here.)

Why am I so concerned about these Court cases (and potential court cases) ?  Well… because the Supreme Court is now headed up by Bush appointee John Roberts.  Back in 2005, he was described as one of the “three possible nominees that big business would cheer” — in part because they thought Roberts might “influence the court to decide more cases deemed critical to business.”  Quoting one observer of that nomination process: “Roberts has spent his career as a mind-for-hire on behalf of the rightwing Republican agenda.”  Quoting another: “if Roberts feels free to overturn precedent… Of particular concern is a return to the Lochner era, a time when free-market capitalists read their ideology into the Constitution by striking down statutes aimed at protecting workers’ health and safety.”

I guess we’re about to find out whether those observers were as accurate in their predictions as President Harry Truman was, in his.

(If you didn’t read yesterday’s post, to read Truman’s prognostications from 1947, click here.)

————

Sen. Edward M.KennedyAnd, in a sad epitaph for Sen. Ted Kennedy… as far as I can tell, no-one has re-filed the Employee Free Choice Act since he died.

(Read yesterday’s post to learn more about the economic and social problems caused by Taft-Hartley, and one possible reason why Sen. Kennedy filed EFCA to fix them.)

Still Waiting for Congress to fix Taft-Hartley By Passing EFCA

Photo from Kheel Center, Cornell University via Flikr/Creative Commons

Sen. Edward M. Kennedy

It has been a decade since Sen. Ted Kennedy first filed the Employee Free Choice Act.

He filed the bill on Friday, November 21, 2003 – almost exactly 40 years after the death of President John F. Kennedy.

A coincidence? Not likely. Here’s the back story:

The Employee Free Choice Act would restore union organizing rights that were taken away by the 1947 Taft-Hartley Act. John F. Kennedy was a member of the Congress that passed Taft-Hartley.

“The first thing I did in Congress was to become the junior Democrat on the labor committee. At the time we were considering the Taft-Hartley Bill. I was against it, and one day in Harrisburg, Pennsylvania, I debated the bill with a junior Republican on that committee who was for it . . . his name was Richard Nixon.” [from a 1960 recording of President Kennedy reflecting on his career]

Both Kennedy and Nixon believed that Nixon won that debate. And just weeks later, Congress passed the Taft-Hartley Act, overriding a veto by President Harry Truman.

President Truman was eerily accurate in his predictions of what the Taft-Hartley Act would do.

Photo from Kheel Center, Cornell University via Flikr/Creative Commons

Photo from Kheel Center, Cornell University via Flikr/Creative Commons

From his radio address to the country:

“The Taft-Hartley bill is a shocking piece of legislation. It is unfair to the working people of this country. It clearly abuses the right, which millions of our citizens now enjoy, to join together and bargain with their employers for fair wages and fair working conditions. …”

“I fear that this type of legislation would cause the people of our country to divide into opposing groups. If conflict is created, as this bill would create it—if the seeds of discord are sown, as this bill would sow them—our unity will suffer and our strength will be impaired.”

From his veto message to Congress:

“When one penetrates the complex, interwoven provisions of this omnibus bill, and understands the real meaning of its various parts, the result is startling. … the National Labor Relations Act would be converted from an instrument with the major purpose of protecting the right of workers to organize and bargain collectively into a maze of pitfalls and complex procedures. … The bill would deprive workers of vital protection which they now have under the law…. This bill is perhaps the most serious economic and social legislation of the past decade. Its effects–for good or ill–would be felt for decades to come.”

Fast-forward through those decades, and read the testimony of former National Relations Labor Board Hearing Officer Nancy Schiffer:

“At some point in my career… I could no longer tell workers that the [National Labor Relations] Act protects their right to form a union. … Over the years, the law has been perverted. It now acts as a sword which is used by employers to frustrate employee freedom of choice and deny them their right to collective bargaining. When workers want to form a union to bargain with their employer, the NLRB election process, which was originally established as their means to this end, now provides a virtually insurmountable series of practical, procedural, and legal obstacles.”

Read this report by researchers at the University of Illinois-Chicago:

“Each year in the United States, more than 23,000 workers are fired or penalized for union activity. Aided by a weak labor law system that fails to protect workers’ rights, employers manipulate the current process of establishing union representation in a manner that undemocratically gives them the power to significantly influence the outcome of union representation elections. … Union membership in the United States is not declining because workers no longer want or need unions. Instead, falling union density is directly related to employers’ near universal and systematic use of legal and illegal tactics to stymie workers’ union organizing.”

Read the report by Cornell University Professor Kate Bronfenbrenner:

“Our findings suggest that the aspirations for representation are being thwarted by a coercive and punitive climate for organizing that goes unrestrained due to a fundamentally flawed regulatory regime … many of the employer tactics that create a punitive and coercive atmosphere are, in fact, legal. Unless serious labor law reform with real penalties is enacted, only a fraction of the workers who seek representation under the National Labor Relations Act will be successful. If recent trends continue, then there will no longer be a functioning legal mechanism to effectively protect the right of private-sector workers to organize and collectively bargain.”

Now, go back and consider President Truman’s most serious prediction from 66 years ago: that the Taft-Hartley Act “would cause the people of our country to divide into opposing groups. If conflict is created, as this bill would create it—if the seeds of discord are sown, as this bill would sow them—our unity will suffer and our strength will be impaired.”

President John F. Kennedy

Think about our national politics.  Isn’t our country divided enough? Isn’t it time to reverse the process started by the Taft-Hartley Act?

It’s been a decade since Sen. Kennedy first filed the Employee Free Choice Act.  Next week, we will mark a half-century since President John F. Kennedy died.

 

Isn’t it time to yank the roots of discord, start ending the conflict, and heal the division that was created by the Taft-Hartley Act?

————

To my long-time readers: apologies if this sounds familiar.  Once again, I have just updated last year’s post to reflect the passage of time; there was no reason to write a new post, because things haven’t changed.  So instead of trying to reword things I’ve already said, I’m just going to start using a new hashtag: #dejavu. (You can see all my repeats in one place!)

Actually, it’s not exactly true that “things haven’t changed.”  In this case they are changing — they’re getting worse.  But more on that, tomorrow.

SEIU 1984 Part-time Workers’ Rights Upheld by NH-PELRB

SEIU 1984 Logo

On Monday, the NH Public Employees’ Relations Board (PELRB) officially answered the issue of whether hundreds of part-time state employees are considered members of the Executive Branch collective bargaining unit. The PELRB ruled that the State has indeed committed an unfair labor practice and ordered the State to recognize these workers as public employees, re-establishing their important rights guaranteed by the contract.

As you may know, last fall, Matt Newland, the state’s Manager of Employee Relations, suddenly and arbitrarily made unilateral changes to the rights and pay of more than one thousand NH Liquor Commission employees and many other part-time workers in state service. He did so through a memo stating that part-time employees were not considered “public employees.” Newland also refused to hear any grievances about nearly all part-time employees and went so far as to order agencies to withhold and intercept union membership cards such workers were trying to submit so that they could join this fight.

Newland’s decision undid decades of past practice and created tremendous disharmony in the workplace. In response, the SEA filed an Unfair Labor Practice with the PELRB, which now finds the vast majority of these employees do, in fact, have the same contractual rights and protections as their full-time colleagues.

Since the beginning of the recession, full-time jobs are increasingly difficult to find. Many workers, including state workers, have been forced to piece together multiple part-time jobs to earn enough to support their families. At the same time, the NH State Liquor Commission is relying more and more heavily on the efforts of part-time workers to fulfill its mission to raise much needed revenue for the state.

“We are very pleased and grateful to the PELRB for standing up for the rights of the many frontline workers in our retail operations. As a NH liquor store manager, I see firsthand the outstanding work our part-timers put forth,” said Richard Gulla, SEA Director and Steward. “Retail hours are unlike those of 9 to 5’ers. We are open many hours each and every day of the week.  We are pleased the PELRB recognizes our part-time workers as being key to the success of NH liquor store’s operations.”

To be clear, this unfair labor practice petition (ULP) was filed well before NH Governor Maggie Hassan took office. “We encourage Governor Hassan to embrace this decision and to carry it forward as an example of employer’s responsibility to treat all workers with dignity, respect and whole people with lawful rights,” said Diana Lacey, SEA president. “She is the CEO of NH’s largest employer. Her good example will benefit all workers.”

Prior to Newland’s bold and unexpected move, a few grievances had been filed involving part-time employees. It is speculated that Newland’s challenge to their rights to representation may have been in response to this fact.  Further, a number of current grievances brought forward by part-time employees have been stalled, waiting for this important PELRB decision.  The process can now move forward for these workers who have been waiting to be made whole.

Note: In 1982 the NH State Liquor Commission employed approximately 276 part-time employees. Because of budgetary considerations and the numerous retail hours to be covered, there are now 916 part-time workers; and only 213 full-time employees.

Think you have union rights? What Happens if there’s no NLRB?

Got Union Rights?

Got Union Rights?Earlier today, a federal appeals court ruled that President Obama improperly appointed three members of the National Labor Relations Board in January 2012.  The Court ruled that the Senate was “in session” rather than “in recess” when President Obama made the appointments, because the Senate held “pro forma sessions” – some lasting less than a minute – during their 20-day holiday break.

The Justice Department had reviewed the issue a year ago and determined that the recess appointments were constitutional.  Similar cases are pending elsewhere in the country — and other appeals courts could rule differently.

NLRB Chairman Mark Gaston Pearce announced today that the Board “will continue to perform our statutory duties and issue decisions” until the question is finally resolved, most likely by the Supreme Court.

That’s probably not the short-term outcome expected by Senate Minority Leader Mitch McConnell and the 41 other GOP Senators who were part of today’s lawsuit.

Probably, those GOP Senators expected to simply put the NLRB out of business.  Here’s how:

  1. In 2010, the Supreme Court ruled that the Board must have at least three members to act – voiding almost 600 decisions that had been issued by the NLRB during the 27 months it had only two members.
  2. The Senate GOP has used the filibuster to block President Obama’s nominations to the NLRB, both before and after that Supreme Court decision.
  3. If today’s appeals court ruling is upheld, then the NLRB will be left with only one Senate-confirmed member — and therefore without any authority to act.  (That would also overturn the hundreds of NLRB decisions made since last January.)

What does that mean to the country, if the NLRB has no authority to act?  Here’s how the Washington Post described this scenario, a year ago:

Workers illegally fired for union organizing won’t be reinstated with back pay. Employers will be able to get away with interfering with union elections. Perhaps most important, employers won’t have to recognize unions despite a majority vote by workers. Without the board to enforce labor law, most companies will not voluntarily deal with unions.

One more time: the NLRB can’t act unless it has at least three members.  The GOP Senators in today’s lawsuit are trying to invalidate three of the current four members, reducing Board to only one member.  And at last report, “GOP senators, including Graham and McConnell, had vowed to block confirmation of any new NLRB nominees.”

Think you’ve got union rights? 

Read more about the GOP’s assault on labor rights in The Hill here.

65 Years Later: Time to Start Healing the Divide

Photo from Kheel Center, Cornell University via Flikr/Creative Commons

Sen. Edward M. Kennedy

It has been nine years since Sen. Ted Kennedy first filed the Employee Free Choice Act.

He filed the bill on Friday, November 21, 2003 – almost exactly 40 years after the death of President John F. Kennedy.

A coincidence?  Not likely.  Here’s the back story:

The Employee Free Choice Act would restore union organizing rights that had been effectively stripped by the 1947 Taft-Hartley Act.  John F. Kennedy was a member of the Congress that passed Taft-Hartley.

“The first thing I did in Congress was to become the junior Democrat on the labor committee. At the time we were considering the Taft-Hartley Bill. I was against it, and one day in Harrisburg, Pennsylvania, I debated the bill with a junior Republican on that committee who was for it . . . his name was Richard Nixon.” [from a 1960 recording of President Kennedy reflecting on his career]

Both Kennedy and Nixon believed that Nixon won that debate.  Weeks later, Congress passed the Taft-Hartley Act, overriding a veto by President Harry Truman.

President Truman was eerily accurate in his predictions of what the Taft-Hartley Act would do.

Photo from Kheel Center, Cornell University via Flikr/Creative Commons

Photo from Kheel Center, Cornell University via Flikr/Creative Commons

From his radio address to the country:

“The Taft-Hartley bill is a shocking piece of legislation.  It is unfair to the working people of this country. It clearly abuses the right, which millions of our citizens now enjoy, to join together and bargain with their employers for fair wages and fair working conditions. …”

“I fear that this type of legislation would cause the people of our country to divide into opposing groups. If conflict is created, as this bill would create it—if the seeds of discord are sown, as this bill would sow them—our unity will suffer and our strength will be impaired.”

From his veto message to Congress:

“When one penetrates the complex, interwoven provisions of this omnibus bill, and understands the real meaning of its various parts, the result is startling. … the National Labor Relations Act would be converted from an instrument with the major purpose of protecting the right of workers to organize and bargain collectively into a maze of pitfalls and complex procedures. … The bill would deprive workers of vital protection which they now have under the law…. This bill is perhaps the most serious economic and social legislation of the past decade. Its effects–for good or ill–would be felt for decades to come.”

Fast-forward through those decades, and read the testimony of former National Relations Labor Board Hearing Officer Nancy Schiffer:

“At some point in my career… I could no longer tell workers that the [National Labor Relations] Act protects their right to form a union. … Over the years, the law has been perverted.  It now acts as a sword which is used by employers to frustrate employee freedom of choice and deny them their right to collective bargaining. When workers want to form a union to bargain with their employer, the NLRB election process, which was originally established as their means to this end, now provides a virtually insurmountable series of practical, procedural, and legal obstacles.”

Read this report by researchers at the University of Illinois-Chicago:

“Each year in the United States, more than 23,000 workers are fired or penalized for union activity. Aided by a weak labor law system that fails to protect workers’ rights, employers manipulate the current process of establishing union representation in a manner that undemocratically gives them the power to significantly influence the outcome of union representation elections. … Union membership in the United States is not declining because workers no longer want or need unions. Instead, falling union density is directly related to employers’ near universal and systematic use of legal and illegal tactics to stymie workers’ union organizing.”

Read the report by Cornell University Professor Kate Bronfenbrenner:

“Our findings suggest that the aspirations for representation are being thwarted by a coercive and punitive climate for organizing that goes unrestrained due to a fundamentally flawed regulatory regime … many of the employer tactics that create a punitive and coercive atmosphere are, in fact, legal. Unless serious labor law reform with real penalties is enacted, only a fraction of the workers who seek representation under the National Labor Relations Act will be successful. If recent trends continue, then there will no longer be a functioning legal mechanism to effectively protect the right of private-sector workers to organize and collectively bargain.”

Now, go back and consider President Truman’s most serious prediction from 65 years ago: that the Taft-Hartley Act “would cause the people of our country to divide into opposing groups. If conflict is created, as this bill would create it—if the seeds of discord are sown, as this bill would sow them—our unity will suffer and our strength will be impaired.”

President John F. Kennedy 

Think about this past election.  Isn’t our country divided enough?  Isn’t it time to reverse the process started by the Taft-Hartley Act?

It’s been nine years since Sen. Kennedy first filed the Employee Free Choice Act.

A year from now, we will mark a half-century since President John F. Kennedy died.

 

Isn’t it time to yank the roots of discord, start ending the conflict, and heal the division that was created by the Taft-Hartley Act?

 

 

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