INK: June 7, 2011

• Insight by Phil Wilson: Freedom to Associ-Hate
• Greetings From Planet Trumka
• USPS: Too Big To Fail, and How
• Union Molehill of the Month: Free Speech Isn’t Free?
• SEIU Watch, Sticky Fingers and more…

********* Insight by Phil Wilson: Freedom to Associ-Hate Unions are in trouble across America. According to the latest LRI Online data , in the first five months of 2011 unions filed over 15% FEWER petitions to represent private-sector workers than they did in the same period in 2010 (and its not like 2010 was some kind of banner year for organizing). Their public sector problems have also been highly publicized. So unions are doing the only thing they know: getting the government to bail them out. Rumor has it that the DOL will issue its new rules on “persuader” consultants next week. These rules will attempt to choke off employer free speech during union organizing campaigns and give unions and the DOL another way to harass an employer who has the audacity to exercise its rights under the NLRA and the first amendment to state its position on unions. The NLRB is doing the same thing. Their rulings on bannering and rat-balloons allow unions to go after secondary employers with a vengeance, discouraging primary employers from exercising their free speech rights for fear of losing customers in this fragile economy.  In addition the NLRB attack on Boeing (and other employers) threatens them with the loss of billions of dollars of capital investment (not to mention thousands of jobs) for so much as breathing the idea that they may want to locate its business somewhere that it might actually achieve some sort of labor peace. States are also passing rules banning employers from holding mandatory meetings where they discuss politics or religion (these laws of course cover meetings where an employer talks about unions, although they aren’t clear about whether that is politics or religion – I’d argue both). Not surprisingly the NLRB’s General Counsel is making no effort to stop enforcement of these clearly preempted statutes at the same time he is going around the country fighting state laws guaranteeing employees the right to vote in union elections. In an Orwellian (or Randian) twist, all these efforts are being made in the name of “workers rights” and freedom of association. But these efforts could not be less about the freedom to associate. The ironic thing about union calls for workers rights is that they only seem to apply if that worker wants to be part of a monopoly union. Dean Zarras wrote a terrific editorial in Forbesthis week that makes this point brilliantly: Is a union member still a member when “membership” is not optional? (The military refers to this as “conscription.”) Note that this is synonymous with some more judo on the ridiculous term, “working family”… Is a family still a working one when their household income crosses some imaginary class-warfare-fueling threshold? Two wage earners, each working their butts off for the benefit of their family, but producing a combined income of say, $250,000: no longer a working family? What about a unionized teacher, married to a unionized firefighter, having three kids and no nanny but a similar combined income? Unions (and the DOL and NLRB who are now doing their bidding) are all about the freedom to associate, so long as you “choose” to associate with unions. But should you decide that a union is not for you, watch out. They use their monopoly status – backed by the full force of the federal government – as a club. Here is the problem with this view of the freedom of association. For the freedom to associate to have any power whatsoever you also have to have the freedom to NOT associate with a group. Otherwise, as Zarras rightly notes, it is not association. It is conscription. That is exactly how unions want the world to work – you are free to associate with whoever you want, so long as whoever you want is a union. It is easy to dismiss this type of talk in an era where unions are becoming increasingly irrelevant. But it should not be easily dismissed. There is nothing more fundamental in a free country than the right to free speech (even speech you don’t agree with) and the right to associate freely with whomever you choose. That the federal government is being asked to so clearly trample on these two freedoms in the workplace is extremely troubling. ********* Union Bailout Update Last week the Workforce Fairness Institute posed an interesting question: which arm of the Obama Administration is killing more jobs, the NLRB or the National Mediation Board?  And while the NLRB just issued a rare pro business ruling (!) and the Boeing case is simmering on a back burner, the NMB again takes the lead. The NMB has announced a full-scale investigation into last fall’s long anticipated Delta flight attendant election, the largest union election since 1935.  Of the 18,760 votes cast 51% voted no union, 46% voted for the Association of Flight Attendants -CWA and the remaining votes went to write-ins.  The investigation renews concerns for Big Labor’s influence over the NMB which last year inexplicably overturned seven decades of precedent to do away with majority rule in transportation elections, and just in time for the Delta vote.  If the NMB finds employer interference it could order a new election and further burden the airline with many more months of major disruption along with the total cost of a revote. Delta attendants have twice before soundly rejected the AFA-CWA while the 7000 Northwest attendants in the newly merged unit have been unionized for decades.  Delta baggage handlers and customer service reps also voted under the new election standards and rejected the Machinists union by even wider margins. Yet the Machinists are also claiming interference and on grounds similar to the AFA – too many anti-union voters turned out to vote. 94% of eligible voters turned out for the flight attendant election, unprecedented if not unimaginable for a unit so large.  The AFA’s complaint hinges on the loathsome contention that the turnout was in fact too high and Delta’s push for full participation was somehow illegal. When results were announced the union’s stunned general counsel groused that the AFA would have won had the turnout only stayed under 90% as their organizers planned. The union cites Delta statements like “You must vote for your voice to be heard” as evidence the airline deceived employees into believing voting was mandatory.  The union also accuses Delta of projecting a “false air of neutrality” for putting “Your Vote Matters” and “Decision 2010” on Delta voting materials while not reminding voters strongly enough that they had a write-in option.  And even though both the union and the board agreed to allow voting on Delta computers, the union now claims voters had reason to believe those votes were being monitored. How the Board found merit in these squirrelly allegations is of great concern and its ruling on this case could conceivably call into question any management message that promotes democratic participation or projects an air of neutrality. If anything, the turnout and results suggest that perhaps under the old overturned NMB standard when folks didn’t come out to vote for a union it really did mean they didn’t want one.  A decision in the case is expect to take several months. Meanwhile, the NLRB decided one for the job creators last week and held that the Teamsters broke the law by demanding a construction contractor comply with an agreement not to use the services of two nonunion trucking companies, and then striking the contractor to enforce that agreement.  The ruling shocked Obama Board observers who were unaware until last week that a union can actually violate the NLRA. With several Congressional probes underway and the Solomon and Becker appointments due to expire, the Board sounded uncharacteristically independent and lucid in its explanation of the Teamster ruling; it has historically drawn a line between generally lawful agreements designed to protect the work of the primary employer’s employees, and generally unlawful agreements designed only to leverage the primary employer into pressuring a “secondary” employer to reach other union objectives. These sentiments seem in conflict with at least the spirit of last week’s “rat ruling” that protects as “free speech” the hectoring of secondary employers with giant snarling inflatable rodents.   ********** When Hot Air Masses Collide Meanwhile, in another terminal, the same two unions objecting in tandem to the Delta elections are locked in a blood match over the flight attendants of newly merged United Continental.  The Machinists union (IAM) represented 8,000 Continental attendants while 13,000 United attendants were represented by the AFA-CWA.  The new airline is still operating as two separate carriers awaiting go-ahead from the FAA but the NMB election to determine flight attendant representation is already underway (voting ends June 29) and bringing out the worst in both unions, not to mention enough hypocritical hot air to make even Andy Stern blush. In one of the latest dust-ups, the IAM objected to the AFA instructing its supporters to notify the union after they voted, presumably so the AFA could tout how well things were going for them. In a letter dated May 19, IAM VP Robert Roach wrote, “How a Flight Attendant votes is a personal choice, and directing someone to reveal how they voted is a flagrant form of intimidation…Flight Attendants are guaranteed by law that their votes are confidential. They should only reveal how or if they voted if they freely choose to do so.” So, it would appear the Machinists Union, champion of the Employee Free Choice Act, is accusing another union of voter intimidation, which EFCA supporters would have us all believe is the exclusive province of bosses, union busters and other corporate evildoers.  And what’s this?  Directing someone to reveal his or her loyalties is flagrantly intimidating?  Is that also true when one is home alone with a union organizer, a pen and a card? Meanwhile, the AFA has accused the IAM of  “underhanded dirty tricks” in gaining a video endorsement from a delegation of Japanese union representatives.  “It is shameful that the Machinists would be so deceitful as to try to trick a sister union… This example may be applied to every single IAM mailing or communication in circulation… For anyone who may have taken the IAM at their word in any other instance – apply this example and then ask questions to get the facts. You cannot count on truth from the IAM. “ But apparently you can trust a pile of signed IAM authorization cards. ********** Greetings From Planet Trumka In an interview with Bloomberg last week, AFL-CIO president Rich Trumka sounds like he’s visiting from another space-time continuum.  To start, Trumka claims that with one foot in the grave and the other on soft soil, union leaders are so disenchanted with Democrats in general and Barack Obama in particular they may just withhold financial backing for Democrats in next year’s elections.  And then what.  Knock doors for Tim Pawlenty? He then went on to confound Earth-bound logic by expressing labor’s dissatisfaction with the Obama NLRB! Apparently, even with the Board making two or three union beholdin’ decisions a week, precedent isn’t overturning fast enough in Trumka’s view.  “Many unions have almost given up on the NLRB because it’s so fraught with delays.” (emphasis on the “almost”)  He then called on the Board to permit quicker union elections.  Of course. Finally Trumka carped about the “distraction” and “hysteria” surrounding our 14.3 trillion dollar national debt, calling for even more of it to spend on infrastructure projects, “green jobs” and more state aid.  Defying the laws of economic physics, more debt would magically end the recession through the miracle of government job creation. He’d also like to see the U.S. become more like European nations (Greece pops to mind) that provide pensions and health care for all citizens. Trumka added he doesn’t mind if conservatives call that socialism. “Being called a socialist is a step up for me.”  From what he didn’t say. ********** Bob King’s Boardroom Dreams And in more socialist labor boss news, the Auto Workers’ Fearless Leader Bob King announced his union would demand seats on the boards of the Big Three during contract talks this summer.  King said he doesn’t want to “negotiate in the press” but as a “general principle” workers should have a voice in the boardroom. “I believe there should be workers’ representation on all boards,” King said, noting workers are routinely given a seat on the boards of German companies. VEBA, the UAW retiree health care trust, already has seats on the boards at GM and Chrysler, but it seems like Comrade King is hoping for a more direct reach into corporate pockets.   He certainly wouldn’t mind a dedicated UAW chair and veto power over executive hiring and compensation, especially at Fords where there’s still plenty of booty to plunder.  Clearly Bob is determined to spread the public sector bliss of negotiating all your agreements with yourself.   ********** Put on Your Thinking Caps In compliance with Executive Order 13563, the DOL has published its preliminary plan for A Simpler Smarter Regulatory System.(Hope springs eternal.) So far, it looks like the only regulatory “streamlining” on tap over at the OLM would be cutting the LM-30 disclosure (Labor Organization Officer and Employee Report) from nine pages down to two with union stewards no longer required to report because, you know, unions are so buried in regulatory paperwork! And the DOL is requesting your feedback! So if you have any suggestions on DOL, OSHA, EBSA, or OLM reporting requirements or regulations (that you could share in polite company) speak up here.   ********** USPS: Too Big To Fail, and How Investigators for the Government Accountability Office have concluded that the business model of the Post Office is so badly broken collapse is imminent. First class mail volume is in free fall and the USPS doesn’t have a viable plan to address the evaporating revenue.  Meanwhile, bulk mailers and the postal workers unions are lobbying for what else?  The mother of all bailouts. The Post Office has 571,000 full-time employees, making it the country’s second-largest civilian employer after Wal-Mart.  It has 31,871 post offices, more than the combined domestic retail outlets of Wal-Mart, Starbucks and McDonald’s. If it were a private company, it would be 29th on the Fortune 500.  Put another way, the Post Office will soon painfully redefine “too big to fail.” 80% of the Post Office’s operating costs go to salaries and benefits.  Contrast that to FedEx’s 43% and 61% at UPS.  Since 2007, the Post Office has stayed afloat by borrowing $12B from the federal treasury and this year it will reach its statutory limit.  In March the Postmaster General warned Congress that USPS would default in September on $5.5B in retiree healthcare entitlements unless the Feds took over those obligations. There are of course other solutions like bulk rate hikes, an end to Saturday delivery, consolidating offices, union concessions and cutting staff through attrition.  (Postal union contracts prohibit layoffs.)  Yet even in the deepening shadow of imminent doom USPS just signed a new concession-free four-year agreement with the American Postal Workers Union that extends the no-layoff provision and grants a 3.5% wage increase on top of uncapped cost of living adjustments. Moving from the horrifying to the just plain kooky, Fredric V. Rolando, president of the National Association of Letter Carriers, says the Post Office should be expanding not contracting services. One of his ideas is to outfit postal trucks with sensors so mail carriers can thwart possible biological terrorist attacks. “They can work with Homeland Security to detect things that are in the air,” Rolando says. The Homeland Security Dept. declined to comment. “I really believe that the USPS is going to get to a point where, regardless of what it does with the prefunding [of retiree health care], it is going to implode,” says R. Richard Geddes, an associate professor of policy analysis and management at Cornell University. “It is either going to default on those obligations to its retirees or we are going to have to give it a direct bailout from the United States taxpayers.” Ouch.   ********** Verdict in Teamster “Party Girls” Case The jury decided Jim Tobin, Secretary Treasurer of Teamster Local 150 in Sacramento was guilty of sexual harassment but sadly for plaintiff Lisa Beauchamp the statue of limitations has expired for awarding monetary damages. Beauchamp, a clerical worker for local 150, accused Tobin of sexual harassment and running a work environment hostile to female employees who weren’t “party girls.” Ms. Beauchamp testified that she was subjected to offensive and sexually charged commentary almost from her first day working for Tobin in 2003 and that more than once he deliberately rubbed into her in a sexual fashion. Her attorney also grilled witnesses on lap sits, hugs and rubdowns that Tobin received as part of a “culture of party girls” in the office, while his staff of business agents and executive board members came back drunk from lunch and emailed porn sites to one another. Meanwhile, Tobin’s defense is charging that Beauchamp is only a “stalking horse” for a union faction that wants to unseat Tobin in an upcoming election.  Tobin’s attorney also stated that Beauchamp has “misinterpreted some harmless fun the labor leader maintained with some of his staff.” (A review of case law surrounding Title VII might be in order for both Tobin and his attorney.) In denying Beauchamp damages, the jury ruled that while there was photographic evidence against Tobin of a hostile workplace prior to March 2008, past that date it was Tobin’s word against Beauchamp.  Tobin said he was “happy about myself being cleared,” even if it came on the statute-of-limitations technicality.   ********* Union Backed Bill Protects Californians from Low Prices

The UFCW is celebrating the California senate passage of SB 469, the Small and Neighborhood Business Protection Act, which punishes so called “big box retailers” for being too successful. As defined by the bill, a “big box” is any retailer with more than 90,000 square feet of space where more than 10% of that space is used to sell food. SB 469 was pushed hard and almost exclusively by the UFCW and is expected to sail through the state assembly and past Gov. Brown into law. The introduction to the bill boldly asserts the state’s obligation to engineer the future of retail and claims that the following plagues befall a community when a superstore comes to town. “Local grocers, who yield a greater community return on investment, are driven out of business; (there is) less community access to viable superstore alternatives; lower wages and benefits (are) paid to grocery workers by superstore retailers; and (there are) a host of complex land use, traffic, and fiscal impacts” that municipalities are apparently too backward or tax hungry to consider without a state mandate. SB 469 would require big box retailers to pay for cities and/or counties to conduct complex impact studies before issuing permits for any new superstores anywhere in California. These studies must investigate a laundry list of concerns from the impact of expected market share on existing (unionized) retailers to the long term environmental impact of any added miles residents might travel to reach a superstore if a (unionized) grocer goes out of business. Of course the big box retailer can still offer “measures that might mitigate any materially adverse impacts” like, we can assume, card check for its employees. No surprise here, Mickey Kasparian, president of UFCW Local 135, is tickled pink. “When it becomes law (the bill) will empower California communities where the public’s quality of life is threatened by the uncontrolled spread of ‘big box’ retail stores… Too often, we have seen mammoth corporations move into communities, destroying long-established local businesses, driving down wages and turning their surrounding areas into blighted colonies dominated by outside interests.” No word on how this bill itself might impact “quality of life issues” for low-income California consumers protected against their will from local tax revenue, lower prices, attainable (union free) jobs and the convenience of one stop shopping.

********* A Worm’s Eye View of the AFL-CIO Harry Kebler, editor of the Labor Educator, has published five articles over the past month laying out what he sees, from a labor insider’s perspective, as the problems with the AFL-CIO.  Here are a few of our favorite passages – “A basic principle of unionism (and democracy) is the right of members to choose their officers in a free and fair election. In the AFL-CIO, members do not have that right. They are given a prepared list of candidates to vote for, in a sham election where there are no opposing candidates. ” “Since there is no independent oversight committee to check on AFL-CIO expenditures, officials can spend our money freely, for whatever purpose suits them. If the Federation suffers financial losses in poor investments, they do not have to disclose the losses. If they make costly mistakes, they can keep them secret.” “The AFL-CIO is currently in the hands of an oligarchy of middle-to-elderly white males who do not depend on the membership for re-election. To keep up the fiction of diversity, they appoint women and minorities to the Council, who can be removed if they criticize the established policies of their leaders.” “The AFL-CIO can’t grow under its present structure, because it has a frozen leadership. The Old Guard functions like a private, self-serving, self-perpetuating club. It has no interest or need to make changes that could strengthen the Federation. They prefer to maintain the status quo and you can guess why.“ Remember, this guy is a union champion! And with champions like this, who needs us! ********* Social Media Spotlight: More NLRB Rulings It would certainly appear the current NLRB has a keen interest in all cases that involve social media.  On May 18^th the Board published its complaint against Hispanics United of Buffalo, alleging the non-profit unlawfully discharged five employees for complaining about workload and other working conditions on Facebook.  The complaint contends that the Facebook posts were protected by Section 7 of the Act.  The complaint is also the Board’s first social media case that does not involve a unionized workplace or organizing campaign. Just over a week later, the Board issued a similar complaint against Knauz BMW, a Chicago car dealership that terminated a salesman for Facebook postings that criticized his employer. The salesman was critical of food served at the dealership feeling the quality of food and beverages served to customers could hurt his commissions.  His coworkers had access to his Facebook page and thus his posts were considered protected activity by the Board for that reason. Labor Relations Today has summarized the recent Board decisions as follows:

• “The Board will take an aggressive approach toward workrules and policies — including social media policies — which are arguably “overly broad,” or might be interpreted to restrict employees’ in the exercise of protected, concerted activity.

• The Board will consider “protected” any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action.  This is a broad, and currently expanding, standard.

• Simple personal attacks posted off-the-clock, outside the workplace — even offensive or profane insults — may retain the protection of the Act if they even arguably arise out of concerted activity, terms or conditions of employment, or other alleged ULP’s.”

  ********* Union Molehill of the Month: Free Speech Isn’t Free? According to the UFCW local 1500, the television network CBS should be ashamed of itself for refusing to show the union’s ad attacking Target on the network’s Time Square jumbotron.  The ad accuses Target of paying low wages, disrespect and discrimination. Tashawna Green, a Valley Stream Target employee, inexplicably invoked the spirits of Walter Cronkite and Dan Rather before slamming the network for daring to care about millions in Target ad revenue. “All we want to do is get our message out to the public that Target Stores does not treat us right and we would like to see change come to our workplace. They let politicians run ads trashing each other all the time, but when the average citizen needs a public forum, they shut us down. I guess Target’s money is more important to CBS that letting the voice of their loyal viewers be heard.”  Gee, Tashawna, ya think? “It is outrageous and immoral for them to now reject the advertisement,” added outraged and offended union spokesperson Patrick Purcell. “The aisles at Target and the halls of CBS both stink tonight with the smell of censorship… These actions, by both CBS and Target, crystallize why Americans are disgusted by irresponsible corporations that pray at the altar of profits. This matter is far from over…” ********* SEIU Watch: Fun With Steelworkers Now here’s some SEIU watching that has us on the edges of our seats!  The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial Services Workers International Union (aka “the Steelworkers”) has filed an election petition to represent all full and regular part-time organizing and collective bargaining staff at the Hartford, CT and Providence, RI locations of the New England Health Care Employees Union (NEHCEU) District 1199, SEIU. You might be asking yourself what the hell the Steelworkers are doing trying to represent union organizers but then you’d be grossly over simplifying this little intrigue. The better question would be – what does the USWA want from 1199 (think no-raid agreement) to withdraw this sham petition and dump these poor unsuspecting organizing organizers like a sack of hot rocks. Trust we will be watching this very closely and with plenty of popcorn. ********** Sticky Fingers Current charges or sentences of embezzling union officials:

http://www.nlpc.org/union-corruption-update