Unions and Government: A Troublesome Combination

I received a newsletter this morning from The Heritage Foundation. It was entitled Morning Bell: Big Labor Is Bankrupting Our Country.  It was an eye opener in some areas. (In the spirit of openess, The Heritage Foundation is a conservative think tank. So if you want to discount this information it is up to you. But I would pay attention to the facts.) Here are some of the facts they listed in the newsletter (and some comments by me):

1. Last month when the White House released its visitor log for the first six months of the Obama presidency, one name appeared far more often than any other: Service Employee International Union (SEIU) President Andrew Stern. (Wow, the MOST frequent visitor? Expecting something or trying to organize the White House housekeeping staff?)
2. The SEIU spent $60.7 million to elect Barack Obama president. (Stern has made it clear that he expects reciprocity. I don't think he is getting to use the Lincoln bedroom in exchange for this $60 million.)
3. Quoting a Hertiage scholar “The overall unionization rate between January and September 2009 stood at 12.4%, unchanged from last year. However, this difference masks a large difference between unions in the private and public sectors. Union membership has fallen to 7.3% of private sector workers ..... But it is a completely different story in the public sector: 37.6% of government employees belong to unions, up almost a percentage point since last year. Those 7.9 million unionized government employees are 51% of all union members nationwide.” (So the governments are such poor employers that almost 38% of workers feel they need a union to protect them. Yet they tell us in the private sector how to run our businesses. Yet only 7.3% of private sector workers have sought union protection. Hey lawmakers, "wake up and smell the coffee!"

The newsletter goes on to explain why unions target governments. Easier campaigns, more dues making it easier to influence or pressure politicians who need to get elected or re-elected. I will let you read this. The conclusion they reach is that all of this makes government more expensive and may push us to the brink of bankruptcy as a government. Is this a valid conclusion? Well took a look at how unions have helped the car industry, the steel industry, and the airline industry (anyone remember Eastern). You can draw your own conclusions.

With the changes in the NLRB, proposed legislation (EFCA and RESPECT) and executive changes removing union financing transparency unions stand a chance of regaining their "power" through political pressure and intimidation. The question is "At what cost?" to us as taxpayers, employers, employees and consumers. A truly troublesome combination.

NLRB Nominees: Loading the Dice in Favor of Labor Unions

How would you like to play a game where everytime you threw the dice you were unlikely to win because you had been given a pair of "loaded" dice? (click for the meaning of this idiom.) You probably would not want to play anymore. But what if you had no chance? What if it was the only game in town? And what if your previous wins with the non-loaded dice were going to be set aside because you were not playing under the new rules?

Well that is the scenario that is being set up with the new nominees for the National Labor Relations Board. The NLRB is made up of 5 members. Three of them generally are generally appointees of the party controlling the White House. So in this case that would be three Democratic nominees and two Republican nominees. Currently there are only two appointed members serving. One was a Bush nominee and one was a Clinton nominee. The Clinton nominee, Wilma Liebman was Obama's  for the position of Chair of the NLRB. The Bush appointee is Peter Schaumber. The remaining two Democrat nominees are Mark Pearce and Craig Becker. Craig Becker in particular has become a lighting rod for controversy. A Republican nominees has yet to be named.

To help understand why this controversy exists let us compare the backgrounds of the current members and nominees.

• Peter Schaumber: Prior to his appointment as a member of the Board, Mr. Schaumber practiced as a labor arbitrator serving on a number of industry panels and through national arbitration rosters. Mr. Schaumber began his legal career as an Assistant Corporation Counsel for the District of Columbia. Subsequently, he was appointed Assistant United States Attorney for the District of Columbia and served in that office's Criminal and Civil Divisions. Upon leaving the United States Attorney's Office, he became Senior Trial Attorney and Associate Director of a Law Department Division in the Office of the Comptroller of the Currency. Upon leaving government service, Mr. Schaumber entered private law practice in Washington, D.C. and was director of his firm's Litigation Department. His practice included a wide range of trial and appellate civil litigation
• Wilma Liebman: Prior to joining the NLRB, Ms. Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). She acted as the chief operations officer of this federal agency, overseeing arbitration, alternative dispute resolution, international affairs and labor-management cooperation grants programs. In addition, Ms. Liebman advised the FMCS Director on issues involving major labor disputes and participated in significant negotiations as needed.
  From 1994-1996, Ms. Liebman served as Special Assistant to the Director of FMCS. In this role, she was a key member of the Mediator Task Force on the Future of FMCS, an 18-member employee group charged with articulating a vision and recommendations to lead the Agency into the 21st century. Prior to joining FMCS in January 1994, Ms. Liebman was Labor Counsel for the Bricklayers and Allied Craftsmen from 1990 through 1993. She served as Legal Counsel to the International Brotherhood of Teamsters for nine years and as staff attorney with the NLRB from 1974 to 1980.
  
• Mark Pearce: Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. In 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law.
  
• Craig Becker: Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.
  

The emphases in each bio are mine. The one current Republican nominee was an arbitrator. Arbitrators are known for carefully guarding their reputations for being unbiased so they can decide cases without bias. Pearce has practiced UNION side law his entire career. Liebman, did work for the Federal Mediation and Concilliation Service, which is a plus, but was an attorney for TWO different unions. And Becker is CURRENTLY on the payroll of arguably the most powerful union in the country, the SEIU, as well as acting as council for the AFL-CIO. Becker is well known for writing many papers indicating that UNION will always win if he has anything to do with it. (Follow these links to Shopfloor and the National Right To Work committee to see business' view of Becker.)
 
Republican Senators are adamently opposed to Becker's appointment, and Senator John McCain in particular has moved to oppose his appointment. Political wrangling may end up seeing Becker's nomination being used as a bargaining chip in the final determination of various labor friendly bills currently pending in Congress. The appointment of this board as it stands will potentially have as much an effect on the labor picture in the U.S. as the passage of any bill such as EFCA or RESPECT. The opportunity for this potential board to over turn 8 years of NLRB decisions will significantly alter the labor picture for companies of all shapes and sizes both union and non-union alike.
 
So stay tuned Bunky! The road may get rough.

And The News Just Keeps Getting Better: More Possible Legislation in 2009

I had the opportunity to hear a webcast today, sponsered by SHRM Atlanta. Two attorneys were talking about the upcoming administration and Congress and what that might mean for employers and HR. Well let me tell you, nothing I heard improved my "impending 2009" mood.

Here is the list of things that need to be watched for:

1. Healthcare reform- Nothing new in that. Several attempts at nationalized legislation. Not sure what will happen but something is coming.


2. Employee Free Choice Act- I have talked about this one. It is starting to get national play. Still high on the union "wish list", but the UAW's unwillingness to help the auto companies may have soured some support for it. But still big.


3. RESPECT- This is the supervisory law that changes the definition of supervisor and takes away assigning and directing from their definition as a supervisor. Now to be a supervisor they must, for the MAJORITY OF THEIR JOB, "hire, transfer, suspend, layoff, recall, promote, discharge or reward." If they don't then they will be considered part of the bargaining unit. Nothing like having your first line supervisors being union members too.


4. Public Safety Employer-Employee Cooperation Act- Sounds like it will impose safety regulations beyond OSHA.


5. Health Families Act- All employers will be REQUIRED to provide 7 PAID days of sick leave to all full time and part time employees if you have more than 15 of them.


6. Family Leave Insurance Act- Employers of 2 or more employees must provide insurance and up to 12 weeks of paid leave.


7. Working Families Flexibility Act- Gives every employee, on an annual basis, the opportunity to negotiate work hours, schedule, or location of work. The employer must respond within 14 days. If the employee doesn't like that the company then has to renegotiate. (I am not sure to what end.)


8. Employment Non-discrimination Act- Provides protected class status to gay, lesbian and bisexual workers. One version includes transgender workers, who self identify.


9. Lily Ledbetter Fair Pay Act- Changes the statute of limitations on filing pay discrimination.


10. Paycheck Fairness Act- Requires that pay between men and women has to be proven to have been decided on some other factor other than sex (education, training and experience) and (here is the problematic part of the burden of proof) the difference must be based upon "business necessity."


11. Equal Remedies Act- takes the caps off of monetary damages imposed by the CRA of 1991 and puts all discrimination penalities on par with race.


12. OSHA- the number of inspections will be stepped up.


13. Minimum wage will go to at least $9/hr.


14. Comprehensive immigration reform will put the burden solidly on the employer, will modify the I-9 and, hopefully, will improve employment verification.

Well there you go. If something strikes your fancy (of fear into your heart) check it out. Help legislators make informed decisions.

BTW, now would be a very good time to do an attitude survey with your employees. Find out if you may have some trouble brewing. One organization I know that does a very good job of this is Intellectual Capital Consulting. Check them out if you would like more info.

Being A Strategic and Informed HR Professional: The Election Impact

Michael Moore of the Pennsylvania Labor & Employment Blog has produced an excellent analyis of pending legislation and the two presidential candidates postitions on that legislation. This is a MUST READ for all HR managers, regardless of how you may vote. You need to understand the impact of this legislation. See his Employer's Guide to the Election.

I posted on this a couple of days ago as well with a few other possibilities thrown in there as well. You need to read this stuff carefully. Like I said it does not make any difference for whom you vote. You need to understand this legislation and its impact on the workplace. Do not automatically pass on a piece of legislation just because it is passed by one party or another. Analyze each piece on its own merits. Then decide if you want your representative to vote for or against the legislation and let them know. You have to realize that once legislation is passed it almost NEVER GOES AWAY! We live with bad legislation and the impact on our workplace, our jobs and the jobs of our employees for a long time.

So, as part of your HR job, be an informed reader, advocate or opponent, and voter. Help your management team understand the potential impact on your business, whether or not you support it personally. Be strategic and a futurist. In fact you may want to forward Mr. Moore's blog to them (and mine as well.)

Stay tuned. I am sure this is not the last you will hear about this subject.

What The Future of HR Looks Like in 2009

Ok, I told you I was going to take a stab at being a futurist. Well here goes.

First some background information. Unless you have been in a hole somewhere you are aware that there is a Presidential election going on in the US. In addition to President, voters will also be selecting members of the Senate and the House of Representatives. Although the Presidential selection is not yet clear it is relatively certain that Democrats will gain majority control of the Senate and will maintain, and probably increase, their hold on the majority of the House. Right now it is projected that Democrats will gain 8 seats in the Senate to give them 65 seats. This is just 2 shy of the 67 needed to override Presidential vetos. The House will gain 12 seats making it 260 Democrats and 175 Republicans. If all members are present to vote 291 votes are needed for a veto.

Why is this information important? Because my prognostications will deal with potential legislation. Whether it gets passed or not will depend on which candidate becomes President and whether "The Veto" becomes a factor.

Here we go. With two houses controlled by Democrats we can expect the following legislation to pass:

1. Unions will call in their "marker" for helping Democrats get elected and the Employee Free Choice Act will pass making it easier for unions to form.


2. A second 'marker' item will be the RESPECT Act. RESPECT stands for Re-empowerment of Skilled and Professional Employees and Construction Trade. This law will change the definition of "supervisor" and as a result, to the great benefit of union membership, will allow many supervisors to become unionized. You can find more about this at the Pennsylvania Employment and Labor Blog.


3. In recognition of Hillary Clinton's bid for the presidency the Paycheck Fairness Act will pass the Senate. The House of Representatives' version has already passed. This is an amendment to the Equal Pay Act. Opponents say the EPA handles these situation, proponents say that inequities still exist and need to be legislated.


4. In conjunction with the Paycheck Fairness Act is the Equal Pay Act Amended. This introduces the concept of equal pay for "equivalent jobs." This harkens back to the concept of Comparable Worth. This may or may not pass, as this creates a major burden on the DOL of determining job equivalency from company to company and even internally in companies.


5. A third compensation bill that will pass will be the Lily Ledbetter Fair Pay Restoration Act. This bill essentially eliminates the 180 day period during which discrimination must be reported. Currently if a complaint is not made to the EEOC on pay discrimination within 180 the EEOC does not recognize the complaint as valid. In essence the 180 days rolls because every day there is discrimiation in pay it resets the clock. This will not be retroactive but it will greatly increase the number of future lawsuits that will be filed.


6. In deference to the very long service of Ted Kennedy in the Senate and in anticipation of his death I predict that two of his pet pieces of legislation will see some action. First, the Minimum Wage increases will be revisited and will be extended for another 3 years of increases culminating in $10 per hour. Secondly, the Civil Rights Act of 1991 will be amended to allow for much larger punitive fines for companies found guilty of discrimination. The current caps will at least be doubled, if not tripled for large companies. It will also make it easier to file class action law suits.

I predict that the Employee Free Choice Act and two of the compensation pieces will be passed and made effective July 1, 2009. Other passed legislation will be effective January 1, 2010 and the minimum wage law will be effective July 24, 2010 as the last increase of the current legislation is reached.

The above scenario assumes a Democrat as President. If Obama is elected there will be no veto of the above legislation since Senator Obama has already supported all this legislation. If Senator McCain is elected there will be vetos in most, if not all, cases. However, with the gains for Democrats mentioned above there is a much greater liklihood of a veto overturn.

Regardless of the outcome of the Presidency battle, 2009 promises to be a very busy one for HR professionals. Unions will certainly be a much great "threat" and the compensation legislation will be a virtual nightmare for HR job analysts and compensation professionals.

We will check back later in the year to see how "Swami" Haberman has done.