Back to the 20th Century?

The President Barack Obama spoke at a recent meeting of the AFL-CIO and after prepared remarks, he responded to a question from AFL-CIO President Richard Trumka. The nub of the exchange was that the President would advise employees to join a union, just as President Franklin Roosevelt did back in the 1930s.

Is that what we need today? Let's examine President Obama's advice by comparing today's workplace with that of the past.

In 1935, the U.S. unemployment rate was more than double what it is now. There were no workplace protections or overtime requirements. The minimum wage law was still a few years away.

Workplace health and safety was something most workers only dreamed about. Discrimination on the basis of immutable characteristics was permitted. There were no legal consequences for workplace harassment.

Employees were not entitled to leave when a loved one was ill. There were no such things as reasonable accommodation or time off when someone was, for example, undergoing chemotherapy treatments.

Instead of thinking their "employees were their most important asset," employers thought workers were fungible. Only the most progressive organizations had employee handbooks, complaint resolution systems, and proactive training for supervisors.

In such an environment, workers turning to a union for representation made tremendous sense. Thus, by 1955, unions reached their high watermark, representing 35% of the American workforce.

Today's workplace is much different. It is highly regulated...some would say the rules are so complex they inhibit job creation. Employers have adopted sophisticated workplace policies and procedures that provide for respect, dignity, recognition, safety, non-discrimination and advancement.

Supervisors receive regular training on proper interviewing techniques and how to embrace diversity in the workplace. Many organizations have "zero" tolerance policies for workplace harassment. Indeed, some company boards require senior officials to resign when their conduct gives rise to serious question.

A variety of federal and state agencies protect employees, for free, as required posters on company bulletin boards advertise. Why pay a union for what is already an entitlement? This does not mean an employer is "anti-union"; it just means the union is irrelevant. Today, not surprisingly, the unionization rate of the private sector is 7.2%.

Indeed, modern workplace disputes between unions and their members may be as common as those between an employer and its employees. Take, for example, the upcoming union election at Kaiser Permanente in California involving 42,000 employees. The question being asked of these workers is whether they want to continue to be represented by the Service Employees International Union or a new union headed up by Sal Rosselli, a former SEIU leader who now heads a new breakaway union. One account says the SEIU may spend up to $40 million in trying to preserve its representation of these members. That's a lot of dues spent on inter-union squabbling!

Do some employers abuse their employees even today? Can a union sometimes constitute a value proposition? "Of course," is the obvious answer.

But that does not mean a union is the "best way" or a "preferred way," or even a "desirable way," of achieving workplace satisfaction. The only people who can answer that question are the employees themselves, preferably through a secret ballot election based on all relevant facts presented in a non-coercive spirit.

"Maybe the President thinks he needs a union," the American worker may say, "but that does not mean I do."

Board Begins Review of Cases in Light of New Process Steel Remands

The National Labor Relations Board was told by the U.S. Supreme Court in June that it had lacked authority to issue hundreds of decisions and orders from January 2008 through April 2010 with only two members in office.  At the time of the High Court’s ruling in New Process Steel, L.P. v NLRB, 130 S.Ct. 2645 (2010), nearly 100 cases were pending in the Supreme Court or the courts of appeals involving such Board decisions.  It was clear then that these cases would have to be revisited by the Board having a proper quorum.  That process has now begun.  However, it is hardly reassuring.

On August 5, the Agency issued four brief decisions and orders in these previously heard cases.  In three of them, the courts of appeals had denied enforcement to the Board’s orders on the authority of New Process Steel.  In the fourth, the appellate court had remanded the case to the agency for further proceedings before the case was decided.  The decisions are virtual clones.  Dutifully reciting that the current three-member panel had considered the administrative law judge’s decision in light of the exceptions and briefs (filed earlier), the NLRB panel summarily reaffirmed its previous two-member decision in each of the cases, for the reasons already stated, incorporating by reference the earlier decision in the new determination.  Chairman Liebman and Member Schaumber, who had issued the earlier, defective decisions and orders, were members of the panel in each instance, joined by Member Pearce. They explained:

 

Consistent with the Board’s general practice in cases remanded from courts of appeals, and for reasons of administrative economy, the panel includes the members who participated in the original decision.  Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board members not assigned to the panel had the opportunity to participate in the adjudication of this case any time up to the issuance of this decision.

 

This explanation is consistent with a press release issued earlier explaining the Board’s intentions. 

The Board plainly is giving short shrift to its compulsory reexamination.  It is going through the motions.  It is reassigning these matters to the same two members who considered them originally, and evidently is not soliciting any further briefing or argument.  The results are easily foretold.   Rubber stamps are the order of the day.

Does this numbing exercise suffice?  We don’t know, but the Board’s cursory treatment is likely to produce its own spate of appeals.  The circuit courts, and perhaps the Supreme Court, then have a chance to consider whether the Board has made amends for its past mistakes.