Obama has been a disaster for Unions

The NEW union numbers are out and it is clear that President Obama has been a disaster for Unions and the Unions need to rethink their behavior or become extinct much sooner than anyone thought.

The “Numbers” are real.  TOTAL unionization of both public and private is down to the lowest level recorded.  And since the passage of the National Labor Relations Act in the 1930’s, the unionization of the private sector is BELOW what it was BEFORE this statute was passed.  This statute was passed to HELP unions organize the private sector.  The workforce percentage in the private sector has dropped under Obama to the lowest level ever from 7.7 percent to 6.6 percent in his first term.  Another four years like the last four and the Union will be at 5,5 percent of the total private sector.

Obama has not done the Unions any favors.  In January of 2012, Obama unconstitutionally appointed three NLRB Board members.

The NLRB appointments are now declared by the DC Circuit Court of Appeals to be unlawfully appointed.  Obama had the opportunity to lawfully appoint a majority of the NLRB Board.   As a result of Obama’s unlawful acts, every “pro-union” decision this unconstitutional Board decides will in a couple of years be ruled null and void and every pro-union decision will be reversed.  It will be over a year before the US Supreme Court at a minimum rules against Obama on this issue.

In the meantime, case after case will have built into each and every one an automatic appeal and reversal.  No company should “stipulate” to an election.  If you do and you lose the election, you have lost a tool to reverse whatever the NLRB rules by filing an appeal.  This alone is a disaster for unions.  Elections held in 2013 can all be appealed and reversed and the litigation can take three years.  By the time the NLRB decision is reversed three years later, many or most of the union supporters will be long gone.

On the Employee Free Choice Act, after receiving @ $500,000,000.00 in campaign contributions from Unions in 2008 that resulted in a Democrat filibuster proof majority in the Senate and a large majority in the House, instead of PASSING EFCA and allowing Unions to quickly recover and organize new employers, Obama opted for Obama care and lost the filibuster proof majority in the Senate with the election of Scott Brown.  As a result, EFCA was dead and the Union’s under Obama lost the ONE CHANCE they had in over 30 years to bend the National Labor Relations Act into a sword on behalf of unions.

Thus, it is in fact President Obama that has sealed the fate of the Unions in this Country to a slow  but sure death.

NLRB Changes Needed

  • Below is Washington Times in article and my thoughts as to what is needed:

http://www.washingtontimes.com/news/2011/sep/9/the-nlrbs-anti-jobs-plan/?page=2

  • As a labor lawyer who practices before the NLRB on a regular basis I can tell you that this is one of the most bias government agencies that exist.  From the unreviewable discretion of the General Counsel to prosecute cases, to the Administrative Law Judges who hear these cases and consistently rule in favor of the General Counsel, to the employees who work for the agency some of whom have in the past referred to lawyers like myself as “management pigs” makes this agency a VERY pro-union operation.  But you cannot blame the agency, the General Counsel and his Regional Directors or the employees who work there.Congress in the 1930’s passed the National Labor Relations Act with the specific agenda of helping unions organize companies.  Although the statute was amended in 1948 to make it “more balanced” under the Taft-Hartley amendments, the simple fact is that Congress did not go far enough.

    Repeal of the statute is what should happen.  Assuming that this is not possible, then MAJOR changes need to be made.  Here is MY LIST for Congress to consider:

  • First is to abolish the trials by the Administrative Law Judges.  All trials should be before Federal Magistrates in Federal Court.  Appeals of these decisions could then go to the NLRB Board for review to determine if the decisions comport with Federal Labor Policy set by the NLRB.  This one change would remove the bias out of the legal trials and be a real deterrent to the POWER of the General Counsel to issue Complaints knowing they have a 90% chance of winning “credibility” issues before these Administrative Law Judges and, therefore, winning the case.
  • Second is that decertification elections (elections to throw the union out filed by the employees who work there) should not be allowed to be “blocked” by a simple unfair labor practice charge being filed by a Union that costs the Union a total of a postage stamp.  I have seen decertification petitions delayed for YEARS as the Union filed one unfair labor practice charge after another, each requiring an investigation, and each “blocking” the election to decertify the Union.
  • Third is that Unions should not be allowed to use “Requests for Information” during negotiations to harass the Company.  I have seen small companies in negotiations have to produce over 10 THOUSAND documents in response to one union request after another being used by the Union as nothing but pure harassment.  The design on the Union’s part is to cost the Company MONEY.  There should be a rule that Companies must only turn over documents to the Union where the Union can establish by CLEAR and CONVINCING evidence that without the information the Union cannot make any proposals to the Company on the matter.  There should be a limit as to the number of document requests the Union can make and if the Union goes over that number, the Company is not required to respond. 
  • Fourth is that there should be a rule that the negotiations go for no longer than 6 months and after 6 months, if there is no agreement, then the Company is free to unilaterally implement its last and final offer made no later than 5 months after negotiations start.  I have seen negotiations go on for YEARS as the Union trying to avoid “impasse” making one proposal after another as small as one penny changes.

    These are just a handful of needed reforms.

    Ron Mason, Mason Law Firm, Dublin Ohio

Wisconsin Defeat is Huge

This election was a severe blow to the Unions. Earlier they tried to rig the Wisconsin Supreme Court, they lost the election and they lost the case before the Supreme Court that could have over-turned the law.

Now they have lost the recall. Why this is important is two fold. First, the Republicans in other states are much more likely to understand the diminished power of the Unions and be willing to pass legislation such as Right-to Work that they never would have dreamed of doing until now.  Second, and more importantly, the BIG win is reapportionment.

If for any reason the reapportionment legislation that was just passed had gone wrong in the Courts, then it would come back to the legislature for changes.  Had the Union’s won control of the Senate, then the Democrats would be able to have forced better districts for the Democrats to run in for 2010 and the entire decade to follow.

This means that Republicans will now probably control both the House and the Senate in Wisconsin for the next decade.

Make no mistake about it, this defeat of the Unions was huge and the Unions know it.

The Battle Lines Are Being Drawn

To paraphrase Winston Churchill, “The battle for the private sector is over, the battle for the public sector is about to begin.”

Make no mistake about it; the Unions have lost the private sector.  Their total membership as a percentage of the private sector workforce in 1960’s was at 30% of the workforce.  Today the unionized private sector is down to less than 7% of the private sector employees.  We look at the Federal Mediation and Conciliation (“FMCS”) records all the time in Ohio.  They report the number of unionized companies and break it down by state.  What we have found is that from 20 to 25 percent of union companies go out of business every three years!  In a twelve year time span, that means that statically there is a 100% failure rate of union companies.  The question is no longer will there be a private sector of unionized companies but only when the last unionized company will turn out the lights?

Will some private sector employers be unionized?  Sure.  But those will be the largest employers who will have contracts in public utilities and the like.  Companies like Yellow Freight that merged with Roadway are hanging on by their finger nails.  The odds that they will over time survive are unlikely.  I for one would not buy stock in that company.  There is not going to be any more “bail-outs” for large private sector union companies. 

The Democrats are in fact now the focal point of union fury (and rightfully so), because of their inability to pass the Employee Free Choice Act (“EFCA”).  That failure will be looked upon as the final turning point of the decline in the private sector unionized workforce.  Not even the National Labor Relations Board (“NLRB”) can save the unions.  All the NLRB can do is speed up the demise of union companies as it costs these companies tons of money to fight that government agency.  In the end, the NLRB does not care about what happens to individual companies.  Thus, the future in this Country is in the non-union sector.  The demise of the union private sector is a given, the only question is when?

Therefore, the battle for the private sector is over, the battle for the public sector is about to begin.

The first thing to understand is that in the public sector, for many years, unions grew, their power grew and the costs to the public taxpayer became greater and greater.  How and why did this happen?

The answer is really quite simple.  The politicians in office were NOT paying the bill.  The taxpayers were paying the bill.  It is easy to allow salary and retirement benefits to grow because there is nobody there politically to stop it.  The “politicians” only cared about getting re-elected.  There was no “voter group” saying to them that if you keep giving these raises and benefits, one day the state or county or city will be broke and cannot afford to pay these benefits.  Think of it as nothing more than a giant PONZI scheme.  These politicians make promises they know the government can’t keep.  They take the current money from the tax payer and pay the “old” promises, and expect to keep getting more money from new taxpayers to keep paying off these old promises.  Meanwhile all the future debt they keep giving away simply becomes more and more unfunded liability.  The states of California and Illinois have just about wrecked their economies over this debt.

But just like Bernie Madoff, when the economy crashed, when all the old promises came due, there was suddenly no “new” money from the taxpayers coming in to pay the bills.  It is estimated that the state and local governments owe somewhere between one and three TRILLION dollars in unfunded health and pension benefits.  Just like General Motors, these public employers gave away the moon to the unions in the hope to buy off the present problem and push the issue down the road.  Unfortunately, the road is now at a dead end.  The state and local governments must now pay the bill charged by past politicians who bought their way into office and re-election on the backs of the taxpayers.

So now the battle to control the “public unions” begins and it starts in the Midwest.  States like Wisconsin, Ohio, Michigan and Indiana will be for the first time confronting the old system and saying “no-more!”

The unionized public sector was about 40% of the workforce in the 1960’s.  Today the numbers are about the same.  However, this could soon change.  Simple items like “Right to Work” where employees are no longer REQUIRED to give money to a union should be passed by every state and applied to state workers in particular.  Requiring the public  unions to establish on a periodic basis that they actually represent a majority of the public employees is an excellent idea whose time has come.  Imagine if you would a future world where the public employees decide for themselves if they want to pay union dues, and decide for themselves if they still want the union to represent them.  The simple fact is that the numbers of people being members in public unions will drop like a rock.  This is the reason why in Wisconsin the unions are putting up such a pitched battle.  They see this for exactly what it is – the gravy train is about to come to an end.

I sincerely believe that if employees, public or private) are given the choice, a large percentage of them will decide that they do not want to pay the union money.  I also believe that as these people stop giving the union money, that they will decide that they do not need a union to speak for them and that they can negotiate their own wages and benefits directly with their employer.

It is my prediction that we are now going to see this decade as the high point of public union membership.  Just like we look back at 1960 as we do in the private sector, we will look back to 2010 as the high point to the continual drop in public employee membership in unions.  It is my sincere hope that maybe for the first time, politicians will be representing the TAXPAYERS in negotiations with the public unions.  Requiring these contracts to be ratified by the taxpayers is an excellent start. 

Of course to keep this going, Democrats must not be allowed to run the state and local governments or else the cycle will in all liklihood start over.

NLRB Power Grab

What does a government agency do when it is slowly going out of business due to lack of support?  It does a power grab by creating new ways to file lawsuits against employers and it is going to require every private employer to post a notice to all their employees advising them that they can use this ageny.

That is EXACTLY what the National Labor relations Board has decided to do.  Work at the NLRB is way down.  Unions are unable to organize the private sector.  (We have almost a 90% win rate on Union organizing campaigns.)   The numbers are so bad that the NLRB is trying to figure out ways to create more work. 

What the NLRB has come up with are two items; one is a new procedure to go to Federal Court to require employees who were discharged during a Union campaign to be reinstated BEFORE there is a legal determination that they were unlawfully discharged.  In a conference I attended, I asked the Acting General Counsel for the NLRB who created this procedure what happens if the Federal Court puts the employee back to work, and then later it is determined that he was lawfully discharged?  His answer?  They never considered that as a possibility!!  I swear to you it is true.   He actually said that.

The next thing the NLRB is doing is seeking a new Federal Rule to REQUIRE every private employer to post a notice that their employees have a right to organize and form a union.  No kidding, after the law was passed in 1935, some 75 years later, the NLRB has decided that employees are not using the NLRB to organize their employers because they do not know they have this right. 

It is extremely unlikely that the NLRB has a right to actually compel these notices, and you can expect that organizations like the Chamber of Commerce will file a lawsuit to stop this NEW RULE the day the rule is published.  The total absence of any statutory authority to actually make employers post this notice will not stop the NLRB from trying to do this. 

Stay tuned for further developments.

Health Savings Accounts destroyed by “Obamacare”

Health Savings Accounts were designed for people to save money for healthcare costs by allowing people to place into these accounts tax free money.  In 2010, the Federal Government “promised” that you could place for an individual policy $3050.00 and for a family the amount was $6150.00.  Seniors over 55 could add an additional $1000.00 to their plan.  Moreover, because these deductions were based upon a “policy issued” basis people were actually able to place into tax free savings for health care amounts in excess of $9000.00. 

I used the word “promise” because you can never trust the Democrats in office not to change things and figure out a way to “reform” something by taxing it.  I also used the past tense, because as of yesterday, all this great tax benefits for the American worker has disappeared overnight.  Thanks to “Obamacare” this tax deduction just got mostly wiped out.  The total “family” contribution is now down to $2,500.00 for a family. 

And for all those Americans who are working and have paid into these funds and fully funded the accounts in 2010?  OOPS!  Too bad, you just got hit with a hidden tax increase!  In fact, over the next several years, the Democrats are expecting to collect in TAXES from you an additional 13 BILLION dollars by taxing this money.

What the Democrats never understand, is that what they have done is wipe out Health Savings Accounts.  They will NOT get this tax money because people will not pay after tax dollars to save for health insurance.  They will switch to another tax deductible way to pay for healthcare.   

Democrats never seem to learn from past mistakes.  Remember about 15 years ago that the Democrats decided that only “rich” people bought new boats and airplanes and so they could afford a “luxury tax” on them so the Democrats could raise more tax money to spend in Washington?  What happened as a result?  It damn near destroyed the boating and aircraft manufacturing businesses in the United States because the American people REFUSED to buy these products with this tax!

It took years before those taxes were repealed in Washington as a mistake.  Yet, nobody in in the Democratic party in Washington went back to those laid off boat and aircraft workers and apologized to them for destroying their jobs and companies. 

For those of you who have already fully paid into your Health Savings Accounts, do not expect Obama to apologize to you for the fact you will in 2010 be paying taxes on your healthcare.  After all, if you got a job, the Democrats think you are “rich” and if you have paid into a Health Savings Account more than $2500.00 the Democrats think you are “very rich.”

Union’s Win First Concession from Obama

Even though Craig Becker, an attorney with the SEIU, was REJECTED to be appointed to the National Labor Relations Board by the Senate in a bi-partisan vote ,  it would appear that the Unions in general, and Andy Stern in particular, are so outraged by the Democrats failure or incompetence to pass the Employee Free Choice Act a/k/a EFCA, that they have demanded, and Obama has agreed, to give Becker a recess appointment to the NLRB anyway.

In earlier posts, we have discussed Mr. Becker and his agenda for labor.

Obviously, the hopes by the Unions are that Becker can do what the Democrats failed to do, and enact EFCA in NLRB cases.  It is what we call legislating from the bench and make no mistake about it, that is EXACTLY what the Unions want him to do and that is EXACTLY what he WILL do.

Why would Becker want a job that he can only hold for less than a year unless in that one year’s time, he intends to wreck havoc on companies and seek revenge for all the slights that labor has suffered under BOTH the Bush and the Obama administrations to date.

While I understand Labor’s frustrations at the Democrats, I just don’t think they ought to atone for this sin by placing on the NLRB an in your face left wing nut who wants to enact the EFCA legislation by NLRB decisions .