Obama Takes On Card Check
Earlier today I wrote a post on Hoover’s Defining Ideas that took the Obama Administration to task for its feckless and unlawful assault against The Boeing Company for its decision to open a second assembly line for its 787 Dreamliner jet plane in business-friendly South Carolina. Today’s news, which also comes from the hyperactive National Labor Relations Board is yet another piece of the Obama administration’s effort to strengthen the position of organized labor through out the United States.
The current story involves the highly controversial institution of the card-check. Right now under the National Labor Relations Act (NLRA) a union may use a card check in order to tee up a union election which is then undertaken by secret ballot. The percentage of workers needed in this relationship is 30 percent, but unions know from experience that a 30 percent support rate typically signals a defeat. Even if a majority of the workers are prepared to sign cards, the secret election will usually come out for management.
The explanation is easy enough to understand. The risk of union coercion (which is if anything higher than the risk of employer coercion) is effectively negated by the secret ballot. A decision therefore to allow 50 percent of the workers in any given bargaining unit to secure representation over the whole is an invitation to wholesale corruption and the complete negation of any form of union democracy.
What happens is this: The card check now allows the union to campaign in secret. It begins with its loyalists and then picks off enough workers one by one until it has a card majority. Typically, the union holds onto the cards and does not return them on demand by workers who have changed their minds. Employers who are ignorant of the drive can do little to forestall it unless they go into an expense and counterproductive full-time anti-union campaign. It is no wonder that this odious device ran into mountains of opposition when the Democrats thought that they had a fighting chance to get the ill-named Employee Free Choice Act through Congress right after Obama became President in 2009.
Many states have acted in response to this by seeking to ban the card check as a matter of state law. Right now Arizona and South Dakota are in the cross-hairs. Further litigation could be brought against South Carolina and Utah. Lafe Solomon, the hyperaggressive general counsel of the NLRB pitches his case on the difficult doctrine of preemption, which states quite simply that the lowliest federal law, including an NLRB regulation, trumps any state rule, no matter how lofty its pedigree. The Board thus asserts that its defense of the card check as a possible option is inconsistent with the state legislation that rules that device off limits for private employees.
At this point, the legal issues are, to say the least, murky, for the Supreme Court law on preemption is a huge muddle. In those cases where there is an explicit preemption of state laws, the federal government always wins. But where the preemption is only implied, the federal government has much tougher sledding.
I would not even attempt a legal analysis of this case without poring over the various statutes to see about the extent of the clash, real or imagined. For the moment, however, the politics of the case dwarf the legal ramifications. The Obama administration know where it has its political debts. It also knows that it has lost business with its actions on a wide variety issues, including bank and finance, tariffs and trade. This headlong dash will cost it dearly, as it becomes clearer by the day that the Obama administration has forfeited any pretense to objectivity in a battle that intensifies by the day.
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Comments :
Apr '11
Re: Obama Takes On Card Check
Richard, I'm thoroughly enjoying your Law Talk podcasts with John and Troy. To a layman like myself digesting your expert opinions and descriptions of legal issues makes my brain hurt at times but is truly challenging and engaging. I appreciate you posting about this subject since I've become more incensed at the way politics are getting in the way of the states to decide their own destiny as I feel the constitution gives them right to.
I wonder what are your thoughts about the talk of an executive act to have corporations declare what party their political donations are going to over a certain dollar amount.
Keep up the fine work on the podcasts.
May '10
Re: Obama Takes On Card Check
Thanks for calling attention to this story. I practice management side labor and employment law in South Carolina, North Carolina and Georgia, and I live in South Carolina, so my better judgment tells me to go easy on this topic because I have very strong feelings about it. I do want to recognize Rep. Eric Bedingfield of Greenville County for his work in the South Carolina General Assembly getting this issue before the voters in last year.
I also have a rhetorical question. South Carolina is a right to work state. So is North Carolina. Both have the lowest levels of union penetration in the country. Barack Obama did not win South Carolina in 2008 and no serious prediction gives him a chance here in 2012. Barack Obama carried North Carolina in 2008 and he dearly needs it again. Now imagine that Boeing located its Dreamliner facility in Charlotte instead of Charleston: Does anyone think that the NLRB would be going to these lengths to shut down a facility in a state that is just as hostile to unions, but which the president must win in 2012?
Excuse my cynicism, but I don't think so.
Jan '11
Re: Obama Takes On Card Check
What exactly happened to the Tenth Amendment?
The "pretense of objectivity" is a nice phrase, but the initials BS would serve better than "pretense."
The Democrats are totally dependent on money and foot-soldiers from organized labor. Obama is a Democrat. Obama is totally dependent on organized labor. He will do whatever he can to further its interests wherever he can.
The arguments justifying each move - card check, Boeing, you name it - are simply facades, empty logic-chopping put forward by sophists on retainers.
Stop taking Democrat arguments seriously. They don't believe their arguments themselves. They don't believe anything, except that they should be in charge and live well.
It is that raw will to power that Democrats know has to be cloaked by the pretense of objectivity.
Re: Obama Takes On Card Check
And what a star SC Governor Nikki Haley is! She's sounding the right note:
We need to push back, hard, against this creeping Big Labor resurgence.
May '10
Re: Obama Takes On Card Check
Exactly Rob. Unions are the economic equivalent of the appendix, a once useful organ, now merely an occasionally painful reminder of a bygone era...
Re: Obama Takes On Card Check
Richard - I know you've written about the problems of "independent agencies" (like NLRB) before. They are clearly an affront to separation of powers. Does this incident illustrate the abuses of unaccountable agencies... or does it suggest that "independence" is a sham because NLRB is just doing Obama's bidding anyway?
Oct '10
Re: Obama Takes On Card Check
Exactly! Or; Unions, once a necessary evil, no longer necessary.
Still evil, though
Oct '10
Re: Obama Takes On Card Check
I first learned about card check from Mickey Kaus.