Unions | Le·gal In·sur·rec·tion - Part 10
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Posted by Jonathan Levin on December 22, 2015 10 Comments
The Boycott, Divest & Sanction ("BDS") movement and the broader campaign to delegitimize Israel has had a tough few weeks.  In academia and industry, the boycott campaign has been exposed as potentially discriminatory and unlawful, and yet another panel of experts has affirmed that Israel's use of force against Hamas is not only legitimate, but exemplary. Law Professors Eugene Kontorovich and Steven Davidoff Solomon of the Northwestern University and University of California - Berkeley, respectively, make the case that boycotts by academic associations are unlawful.  As one might expect, academic associations each have a stated purpose, typically to collect, share, expand and advance knowledge in the relevant field.  Profs. Kontorovich and Davidoff explain that such associations cannot legally do anything other than pursue those stated purposes, and:
Boycott resolutions that are beyond the powers of an organization are void, and individual members can sue to have a court declare them invalid. The individuals serving on the boards of these organizations may be liable for damages. Consider the American Historical Association. Its constitution—a corporate charter—states that its purpose “shall be the promotion of historical studies” and the “broadening of historical knowledge among the general public.” There’s nothing in this charter that would authorize a boycott. And an anti-Israel boycott will do nothing to promote “historical studies” or broaden “historical knowledge.” A boycott by definition restricts study and research: The explanatory material attached to the [American Anthropological Association ("AAA")] resolution, for example, says it would restrict the organization from sharing scholarly journals with Israeli universities.

Posted by Mike LaChance on October 07, 2015 15 Comments
It looks like the United States isn't the only country with unhinged union activists. After job cuts were recently announced at Air France, angry union activists actually ripped the clothes off the bodies of airline executives. The Associated Press reports via NBC News:
Air France Execs Lose Shirts as Union Activists Attack Union activists protesting nearly 3,000 proposed layoffs at Air France stormed the headquarters during a meeting Monday, zeroing in on two managers who had their shirts torn from their bodies, scaled a fence and fled under police protection. An Associated Press photographer saw about a hundred activists rush the building after breaking through a gate. Shortly afterward two high-level managers fled, one bare-chested and the other with his shirt and suit jacket shredded. Road access to Charles de Gaulle airport in Paris was briefly disrupted, and some flights suffered delays. Although Monday's scuffle was unusually violent, labor relations in France are commonly testy, with unions sometimes even resorting to holding managers hostage — or "boss-napping" — to make a point.

Posted by William A. Jacobson on September 22, 2015 23 Comments
Wisconsin radio talk show host Charlie Sykes interviewed Scott Walker confidante John Hiller on Walker's decision to end the campaign, and on Walker's future. The money quote emphasized at Syke's website, RightWisconsin, was that Walker "Was At Peace With the Whole Thing":
John Hiller, a closer confidant of Scott Walker, told Charlie Sykes that the governor was at peace after making his decision to leave the presidential race. "He was at peace with the whole thing. He probably handled it better than anyone at the table," said Hiller. Hiller, along with Walker's wife Tonette, was in the room with a handful of close friends and advisors when Walker made his decision. Hiller said that Donald Trump, the 24 hour news cycle, the inability to raise money, and some missteps were the reasons Walker believed he no longer had a path to victory. "This is a very similar scenario to 2006," said Hiller. "When you don't have a clear path to victory, it's in everybody's best interest to get out."
But the line which jumped out at me, coming at the end of the interview and which Sykes also quoted, was:

Posted by Amy Miller on September 14, 2015 8 Comments
Today, Wisconsin Governor Scott Walker will take the stage at a Las Vegas town hall and unveil his national labor reform plan. On Thursday, Walker teased the plan during a speech at Eureka College, saying, "...on Day One, I will stop the government from taking money out of the paychecks of federal employees for political union dues. I've won those battles in Wisconsin and believe me, I won't back down from the battles in Washington." The Walker campaign has done a lot of legwork in the lead-up to today, which tells me that they're banking on this presentation as a vehicle to breathe life back into what many believe is a faltering campaign infrastructure. During an interview with CNN's Jake Tapper this weekend, Walker ran offense as Tapper grilled him on dropping poll numbers and criticism from right-leaning outlets about how his campaign is handling the pressure of the election cycle. Walker's labor reform plan is bold, and detailed. He proposes eliminating the National Labor Relations Board, eliminating federal unions, and requiring new levels of transparency and accountability for all unions. He also backs national right to work laws, and policies that would protect whistleblowers and employees who choose not to join a union. On the taxpayer end, Walker proposes rolling back wage controls (for a savings of $13 billion over ten years,) and ending union control over federal highway contracts (for a savings of 12-18 percent per project.) In an exclusive op-ed at HotAir, Walker touts the plan as a way of protecting workers, while loosening the unions' stranglehold on government:

Posted by William A. Jacobson on September 11, 2015 35 Comments
Scott Walker has fallen dramatically in the polls, undone for now by the Trump phenomenon. Numerous pundits, including me, wonder if he can get back up again. Surveying the Republican field, based solely on current polling, Scott Walker should not even be on Hillary's radar. But he is. And she just lashed out at him more viciously than she has any other candidate. Politico reports:
Making her 2015 debut in Scott Walker’s home state of Wisconsin, Hillary Clinton on Thursday unleashed her harshest and most extended diatribe yet against a Republican rival not named Donald Trump, accusing the governor of being a tool of the billionaire Koch brothers. “It seems to me, just observing him, that Governor Walker thinks because he busts unions, starves universities, guts public education, demeans women, scapegoats teachers, nurses, and firefighters, he is some kind of tough guy on a motorcycle, a real leader,” Clinton said to a packed audience at the University of Wisconsin-Milwaukee. “Well, that is not leadership folks. Leadership means fighting for the people you represent."

Posted by Kemberlee Kaye on August 17, 2015 7 Comments
A few months ago Gawker staffers successfully formed an employee union. Why? Because they wanted a union. Yes really, that's the only reason. Whether the move spooked other prominent trash click sites or because their own employees were mumbling uniony things is unclear, but both Upworthy and Buzzfeed have discouraged their employees from going the way of Gawker. Last week, Buzzfeed founder and CEO Jonah Peretti reportedly explained in a staff meeting that, "he doesn’t think unionization is “the right idea” for BuzzFeed," writes Buzzfeed. Buzzfeed reports:
“I think unions have had a positive impact on a lot of places, like if you’re working on an assembly line,” Peretti said at a company meeting. In such cases, “if you’re negotiating with management it can make a huge difference, particularly when labor is more replaceable.” In contrast, he said BuzzFeed patterns itself after companies like Google and Facebook, which compete for less replaceable talent by offering better compensation and benefits.

Posted by Kemberlee Kaye on August 17, 2015 11 Comments
Monday morning, the National Labor Relations Board overturned a ruling that would have allowed football players at Northwestern University to unionize. Citing concerns a union would provide an unfair advantage in the college football arena between unionized schools and the un-unionized, the NLRB's ruling was unanimous.

Posted by Amy Miller on July 30, 2015 22 Comments
Yesterday, the Michigan Supreme Court voted 4-3 to make public sector employees subject to the state's 2012 Right to Work law. The holding dealt a huge blow to the labor unions vying to represent the state's almost 40,000 employees. The court's argument turned even the friendly appeals court ruling on its head; while the appeals court ruling said that the existence of the Michigan Civil Service Commotion did not preclude the inclusion of state employees under the right to work laws, the supremes held that the Commission never had the authority to require state employees to pay the union-related agency fees, even before right to work laws existed. More from Michigan Capitol Confidential:
Justices Viviano, Markman, Young and Zahra ruled that while the Civil Service Commission has control of salary, benefits, grievance procedures and employment conditions, it does not have the authority to require involuntary payments to the union. Adopting an argument provided by the Mackinac Center Legal Foundation, the majority held that agency fees were akin to a tax on public employees and that the Michigan Civil Service Commission lacked the power to tax. Justices Bernstein, Kelly and McCormack disagreed with the majority, saying that the Civil Service Commission’s authority includes the ability to force union payments from employees.

Posted by William A. Jacobson on July 23, 2015 20 Comments
On Wednesday, July 22, 2015, I was on a panel at the Annual Meeting of the American Legislative Exchange Council (ALEC).  Keynote speakers at the Annual Meeting include Scott Walker and Ted Cruz. The topic of my panel was Freedom of Thought in Higher Education. The panel chair was Utah State Senator Howard Stephenson, and fellow panelists Dr. Peter Wood, President of the National Association of Scholars, and Robert Shibley, Executive Director of The Foundation for Individual Rights in Education (FIRE). The panel was the best attended workshop of the day, with over 100 attendees, mostly state legislators. [caption id="attachment_135470" align="alignnone" width="600"]William A. Jacobson Cornell ALEC Annual Meeting 2015 [L-R - Robert Shibley, Peter Wood, Howard Stephenson, William Jacobson][/caption]My portion focused on the anti-Israel academic boycott and broader boycott movement (BDS). About one-third of the more than 100 mostly state legislators in attendance had heard of BDS. I covered the history of BDS, which was created at the anti-Semitic 2001 Durban Conference, and how systematic academic boycotts pose systemic risk which is appropriate for narrowly tailored legislation that protects the system without unduly infringing on academic freedom and free speech. I discussed, among other things, my challenge to the tax exempt status of the American Studies Association.

Posted by Mike LaChance on May 30, 2015 9 Comments
This seems to happen frequently. As we noted in 2013, the IRS and other workers' unions wanted an exemption from Obamacare, despite the fact that they would be trusted with enforcing it and had been avid supporters of it. Now labor leaders in Los Angeles, who pushed for a minimum wage hike, are suggesting that unions should be exempt from that very rule. From the LA Times:
L.A. labor leaders seek minimum wage exemption for firms with union workers Labor leaders, who were among the strongest supporters of the citywide minimum wage increase approved last week by the Los Angeles City Council, are advocating last-minute changes to the law that could create an exemption for companies with unionized workforces. The push to include an exception to the mandated wage increase for companies that let their employees collectively bargain was the latest unexpected detour as the city nears approval of its landmark legislation to raise the minimum wage to $15 an hour by 2020. For much of the past eight months, labor activists have argued against special considerations for business owners, such as restaurateurs, who said they would have trouble complying with the mandated pay increase.

Posted by Kemberlee Kaye on April 17, 2015 13 Comments
Yesterday Gawker Media's staffers announced their open flirtations with unionization. While union strongholds nationwide are diminishing in favor of greater employee choice and right to work, Gawker is hoping to be the first online publication subject to union demands. Hamilton Nolan explained why he finds unionization appealing because he wanted to get ahead of the gossip. Yes, really. But then what is Gawker if not gossipy?
Every workplace could use a union. A union is the only real mechanism that exists to represent the interests of employees in a company. A union is also the only real mechanism that enables employees to join together to bargain collectively, rather than as a bunch of separate, powerless entities. This is useful in good times (which our company enjoys now), and even more in bad times (which will inevitably come).
Speaking from personal experience, I've never been employed by an entity with unionized employees. But when you live in a great right to work state like Texas, that whole organized labor problem solves itself. Perhaps I've been exceptionally fortunate or maybe it's because I've always understood my roll as an employee is simply to complete the job I was hired to do, but not once in my professional life have I encountered a workplace situation where I thought, "Gee, a hoard of angry people picketing, striking, and demanding the boss capitulate is a GREAT idea! Let's do that!" Nor have I ever felt I needed the assistance of groupies to convey a point. I've never felt 'powerless' because my expectation of work was not to garner power, but to do a job, and then get paid because I did the job I was hired for. I'm also not a pansy. But I digress... back to Nolan's union rationale:

Posted by William A. Jacobson on March 09, 2015 27 Comments
Put another feather in his cap, Scott Walker today signed Right to Work legislation in Wisconsin, becoming the 24th State to do so. The Milwaukee Journal Sentinel reported prior to the signing:
Gov. Scott Walker will sign so-called right-to-work legislation on Monday morning at Badger Meter in Brown Deer after the Assembly passed the measure Friday morning following almost 24 hours of debate. The measure bans labor contracts that would make it mandatory for workers to pay union fees. The legislation zoomed into play this year, pushed by GOP legislators, after Walker brushed aside the issue as a distraction during his re-election campaign last year. Now as a presumed 2016 presidential hopeful, the pending change in law could add polish to Walker's record on business. Twenty-four states have right-to-work laws. Supporters say that workers shouldn't be forced to pay a group if they don't believe in it. They say the change could provide a spark to the Wisconsin economy. Opponents say businesses and unions should be left alone to negotiate labor contracts. They say the law change isn't about worker rights but more about driving down wages and exerting more control over the workplace.
Here are some images from the signing:

Posted by Amy Miller on February 20, 2015 35 Comments
Wisconsin Governor Scott Walker has made a name for himself in the fight to roll back union influence. He easily overcame a 2012 recall effort organized by big labor and other progressive interests, and since then has been held up by many conservatives as an example of what Republican leadership should look like. Now considered an emerging contender in the 2016 Republican presidential primary, Walker is taking new steps to court both employers, and workers who support right-to-work policies over forced union membership. Legislators in Wisconsin are planning on fast-tracking a new, controversial bill that would make Wisconsin a right-to-work state. Walker had previously urged the legislature to put the issue on the back burner, saying that the revived controversy would conflict with his larger agenda, but after a series of meetings with lawmakers, has agreed to sign on to the effort. That promise has not come without controversy. More from the AP:
"I think we can do this next week without it getting really ugly," said Republican Senate Majority Leader Scott Fitzgerald on WTMJ radio in Milwaukee. "We'll see next week whether the Capitol blows up. I don't know." Right to work is a "false promise for Wisconsin," said Phil Neuenfeldt, president of the Wisconsin AFL-CIO, in a prepared statement. "Right to Work will not create jobs and will lower wages for all workers," Dan Bukiewicz, president of the Milwaukee Building-Construction Trades Council, which represents union construction workers in the Milwaukee area, called right-to-work "an unneeded distraction." "It's very disappointing they're going to fast-track it. Usually when things are done fast they're done incorrectly," he said. "I haven't heard anybody come out from a business standpoint saying this is what they want. The residual results of this will hurt the citizens of Wisconsin." Proponents of right-to-work argue it will make Wisconsin more competitive and that workers should have the freedom to decide whether to pay and join a union, rather than having dues automatically withdrawn.

Posted by Amy Miller on December 12, 2014 17 Comments
The NLRB has spent the past year doing their best to make it easier for union organizers to force workers into union membership. Their McDonald's ruling brought us closer to mass unionization, and a new rule that was just passed seeks to speed up the union elections process: From Politico:
The rule will require businesses to postpone virtually all litigation over eligibility issues until after workers vote on whether to join the union, thereby depriving management of a stall tactic that unions widely claim benefits the employer. In effect, regional NLRB directors will be given broad discretion to rule such litigation unnecessary until an election takes place. ... The regulation will eliminate a previously-required 25-day period between the time an election is ordered and the election itself, and it will require employers to furnish union organizers with all available personal email addresses and phone numbers of workers eligible to vote in a union election. An NLRB decision handed down yesterday essentially prohibited employers from denying union organizers access to company email. The rule will also, for the first time, allow for the electronic filing and transmission of union election petitions.
You can call it a stall tactic, but it's certainly a valid one, considering the demands union organizers make not only on employers, but on the personal privacy of employees. Now, employees won't even have a choice when it comes to participating in the conversation. Obviously, businesses and unions are at odds with each other over whether or not this new rule will help workers, or make it impossible for them to make an informed choice about unionization:

Posted by William A. Jacobson on September 10, 2014 10 Comments
We have seen this picture before in the Wisconsin's union-induced long strange trip during the 2012 Recall Election:
Police insurrections.  Palace guards.  Catch a Senator contests.  Doctors behaving badly.  Massive national solidarity protests which weren't.  Identity theft as political theater.  Shark jumping.  Legislators who run away to other states.  Bus bang bangs.  Protesters locking their heads to metal railings and pretending to walk like Egyptians.  Beer attacks.  Canoe flotillas.  (alleged) Judicial chokeholds.  Tears falling on Che Guevara t-shirts at midnight.  Endless recalls.  And recounts.  Communications Directors making threats.   Judges who think they are legislators  (well, I'll grant you that one is common).  V-K Day.  Hole-y warriors.  Cities named Speculation and Conjecture.  And the funniest blog headline so far:
First They Came For The Right To Retire After 30 Years On Full Salary With COLAs
The collective bargaining law that precipitated the insanity recently was upheld in its entirely by the Wisconsin Supreme Court. Now the unions are doubling (or is it tripling, at this point?) down on the get Walker meme, via WaPo:

Posted by Amy Miller on September 05, 2014 46 Comments
On Thursday, fast food and home healthcare workers across the country walked away from their jobs and joined the "Fight for $15," an SEIU-backed movement demanding a $15 minimum wage and unabridged union rights for fast food workers. In the past, organizers and participants have largely avoided trouble with law enforcement. This time, however, protesters came armed with a mandate from on high to engage in civil disobedience to the point of arrest. In Detroit, a crowd of about 200 protesters locked arms across the street fronting a local McDonald's, causing a traffic backup and a shortage of officers available for school patrol:
“The protesters who were sitting on Mack Avenue and refusing to move had a bit of a negotiating session between the police department and the organizers — that didn’t go anywhere,” Szumanski said. “So, police have now swooped in and what they have done is arrested at least 20, maybe 30 people. They’re leading them away in handcuffs to the back of the squad cars.”