Freedom Line Blog

Here at CFIF, we’ve written at length about how unionization rates in the United States have reached record lows. Despite talk of Big Labor’s resurgence, spurred by a pro-union White House and a federal government that tips the scales in unions’ favor, American workers are just not sold by the self-enrichment of union leadership and hostile negotiating practices that ultimately harm workers more than help them.

America’s growing tech sector, which typically maintains non-unionized workforces, perfectly illustrates today’s workforce realities.

A company named findhelp in Austin, Texas, however, suddenly finds itself at the center of an unwanted drama that threatens the company’s future courtesy of Big Labor.

By way of background, findhelp is a social care network to connect people with community services. It’s a “public benefit company” backed by private equity that employs approximately 250 workers.

On January 25, the Office and Professional Employees International Union (OPEIU) announced that findhelp workers formally sought a union representation election with the National Labor Relations Board (NLRB). Naturally, deep-pocketed Big Labor groups like the AFL-CIO leapt at the announcement to claim it as some sort of watershed moment for workers in the tech sector.

Instead of a watershed moment, however, the reality appears to be Big Labor doing what it is notorious for doing: instigating worker unrest. This case offers a particularly chosen opportunity to Big Labor, as it desperately seeks to gain a foothold in the tech sector, and in a right-to-work state whose growing population and business prosperity are due in large part to the fact that it remains a refuge from the destructive public policies pushed by Big Labor.

At the center of the effort to unionize findhelp’s employees is the “findhelp Solidarity Network,” a glossy, public relations effort claiming employees at the company are “missing a voice at the table.” Parroting commonplace Big Labor Union slogans, it expresses a desire to “ensure that findhelp becomes, and stays, a place where all team members have a living wage, competitive benefits, and a respectful work culture.”

Those are curious charges against a tech start-up like findhelp, but ones that are all too recognizable for anyone familiar with Big Labor’s antics.

Meanwhile, on the popular company-review website Glassdoor, findhelp maintains an average rating of 3.4 out of 5. Companies like findhelp in early stages of development naturally experience growing pains, and complaints on Glassdoor by current and past employees like issues with “transparency,” “trust,” and management allegedly refusing to respond to employee feedback are commonplace at start-ups. An NLRB complaint charges findhelp with coercive actions, coercive rules and coercive statements, among other typical boilerplate union charges. Which raises the question of whether such commonplace complaints justify a full-blown union representation campaign threatening to drive a fledgling company into the ground through union representation.

It also makes for an odd irony, because many tech sector companies maintain left-leaning employee cultures, often at the encouragement of left-leaning executives themselves. Accordingly, one might expect them to welcome unionization, since in the abstract those same left-leaning cultures would favor Big Labor and its partisan agenda.

Tech sector employers, however, operate in an environment demanding fluid development and the ability to pivot on a moment’s notice. Unions, by their very nature, inhibit that sort of fluidity and flexibility.

It’s an issue of obvious concern for management, investors and even customers who may question the ability of a company with Big Labor’s bullseye on its back to function as effectively and efficiently as needed.

Unfortunately, all of this threatens to further embolden Big Labor, which may in turn have a substantial impact on startup companies across our economy, particularly in the tech sector.

In the meantime, all eyes will be watching findhelp and how it navigates this sudden and unwanted disruption.

Many claim to prefer bipartisanship out of leaders in Washington, D.C., and right now we’re witnessing an encouraging example of it.

Specifically, Senators Mike Braun (R – Indiana), Joe Manchin (D – West Virginia), Angus King (I – Maine), James Lankford (R – Oklahoma), Kyrsten Sinema (D – Arizona), and Susan Collins (R – Maine) have written National Labor Relations Board (NLRB) Chairman Lauren McFerran seeking reconsideration of the NLRB’s proposed “Joint Employer Rule” that they correctly warn “would have negative effects on workers and businesses during a time that many are already struggling following the COVID-19 pandemic.”

For years we at CFIF have sounded the alarm on the Joint Employer Rule that the Senators target, because it would dangerously reverse decades of established labor law by holding businesses liable and responsible for employees of franchisees whom they didn’t hire and over whom they exercise no control:

Under longstanding court precedent and National Labor Relations Board (NLRB) interpretation, an ’employer’ for purposes of applying the nation’s labor laws was generally defined to include only those businesses that determined the essential terms and conditions of employment.

As a textbook illustration, imagine a franchise arrangement whereby the franchisee determines whom to hire, whom to fire, wages and other everyday working conditions.  The distant franchisor, in contrast, obviously doesn’t fly every potential franchisee employee in for an interview at corporate headquarters or micromanage its franchisees’ working conditions.

On that logic, the Third Circuit Court of Appeals ruled in NLRB v. Browning-Ferris Industries (1982) that the appropriate standard for defining an employer with regard to a particular set of employees was established by the U.S. Supreme Court in Boire v. Greyhound Corp. (1964).  It held that only businesses exercising control over ‘those matters governing the essential terms and conditions of employment’ were subject to collective bargaining requirements and liabilities.

Two years later, the NLRB formally adopted that standard, ruling in separate cases that ‘there must be a showing that the employer meaningfully affects matters relating to the employment such as hiring, firing, discipline, supervision and direction.’  In other words, an ’employer’ for purposes of labor law mandates required direct and immediate control over the terms and conditions of employment.

That stands to reason, since it makes no sense to impose legal liability upon employers that don’t actually control a bargaining unit’s employment conditions.

In August 2015, however, Obama’s NLRB suddenly and needlessly upended that established legal standard by redefining what’s known as the ‘Joint Employer Doctrine.’  Essentially, the Joint Employer Doctrine now allows multiple businesses to be held legally liable for the same set of employees.

Thus, in the infinite wisdom of the Obama NLRB, even employers with indirect or even merely potential ability to affect employment terms could suddenly find themselves subject to federal labor laws.”

In their letter, the Senators highlight the potential harm of the proposed rule.  They note that in the United States, nearly 775,000 franchises employ 8.2 million workers and provide $800 billion of economic output, which is projected to grow in 2022 to nearly 800,000 franchises.   As they further note, the International Franchise Association (IFA) found that the proposed rule could “cost franchise businesses $33.3 billion per year, resulting in 376,000 lost job opportunities, and led to a 93% increase in lawsuits.”

These Senators demonstrate welcome bipartisan leadership, and Americans should contact their Senators to make their support clear.

Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs, discusses what is wrong with the NLRB’s regional ruling that scholarship football players are employees and eligible to form a union.

Listen to the interview here.

Two years ago President Barack Obama decided to appoint three new members to the National Labor Relations Board, even though none of them could clear the U.S. Senate.

Blocked from getting what he wanted, President Obama installed the nominees anyway, arguing that the Senate was on recess; a move allowed under the U.S. Constitution’s Recess Appointments Clause.

There was just one little problem. The Senate had not recessed.

Republicans in the chamber anticipated Obama’s move and negotiated an agreement with majority Democrats to keep the Senate open every three days during the Christmas and New Year’s break in order to conduct business. Thus, as far as the Senate’s own records are concerned, the body never went on recess. By refusing to give its consent, the chamber, in effect, told Obama to nominate three new people.

He declined.

The fight now is before the Supreme Court, which today heard oral arguments from the Obama administration and counsel representing 45 members of the Senate Republican caucus, among others.

While there are a host of arcane and at times interesting constitutional questions to consider this particular case boils down to whether the Court thinks the President or the Senate has the final say as to when the Senate is in session.

The answer should seem obvious, but don’t underestimate the Court’s ability to choose wrongly.

Victory for President Obama in this suit would be a body blow to the Constitution. The Senate’s ‘advise and consent’ role is designed to ensure that only those qualified for high governmental service actually serve in such posts. Yes, the confirmation process is political, but that’s the name of the game when one is a political appointee. Sometimes you lose.

Once again, we have an instance where President Obama, unwilling to compromise, is trying to impose his will by fiat, constitutional processes be damned.

The Court’s ruling is expected in late June. For the good of the republic, it should find a way to rein in an out-of-control executive.

If you missed President Obama’s big climate change speech at Georgetown University earlier today, count yourself lucky. At this point, one has to assume that the White House speechwriters are making his remarks this dreary as an intentional means of keeping the public away from the content (in this case, a huge push to regulate carbon emissions from coal plants — the nation’s cheapest and most widespread source of electricity).

Two things stood out from the remarks:

1. Obama is all in on executive power. In the same week that the Supreme Court announced that they’re going to take up the President’s patently unconstitutional recess appointments to the NLRB, here he was once again bypassing Congress and the public. Obama is proposing nothing less than a reordering of our energy economy (let’s not forget his 2008 campaign trail promise to bankrupt coal producers) — and he’s doing it all through executive directives to the EPA. Congress had the chance to pass cap and trade back in the first two years of this Administration and they couldn’t get it done despite the fact that Democrats controlled both houses. Part of the reason: there was a Treasury Department analysis at the time that said passage would be tantamount to a 15 percent income tax increase. The people and their elected representatives have spoken. The President has ignored them.

2. Obama’s condescension towards climate change skeptics (such as yours truly) is astonishing. While the left has a tendency to boast about their reverence for science, they don’t seem to have much respect for the process of critical inquiry that the process requires. Obama today referred to climate skeptics as “members of the flat earth society” (ah yes, the man who was going to heal our national wounds). Just once, I’d like to see someone on the left acknowledge the fact that you can’t get to the virtues of widespread carbon reduction without going through a series of increasingly specific propositions, all of which are subject to some measure of debate:

— Climate change is occurring

— Climate change will produce significant negative effects on humanity

— Climate change is, at least in part, caused by human activity

— There are actions we can take to reduce the prospect of climate change

— The benefits of those actions outweigh the costs

— There are not other policies available with a superior cost-benefit ratio

Perhaps the president has already answered these questions in his own head, but he’s been remarkably mum about them publicly. My guess is that the glib insult is a way of obscuring the fact that he has no real responses.

It looks like there could be a Supreme Court showdown over whether President Barack Obama violated the Constitution when he appointed members to the National Labor Relations Board back in January.

All 45 Senate Republicans have filed a friend of the court brief asking the justices to uphold the D.C. and Second Court’s rulings that the president did just that. The Obama administration, of course, disagrees and wants to high court to reverse.

The constitutional question to be answered is whether the Senate or the President gets to decide when the former is in recess, and thus when the President can make recess appointments to bypass the Constitution’s advice and consent requirement.

Important? You betcha.

As the NLRB case shows, if the President gets to decide when the Senate is in recess then the advice and consent requirement becomes effectively a voluntary procedural hoop that the President can choose to ignore whenever a nominee can’t get the necessary votes for confirmation. Such a development would effectively nullify the Senate’s only real quality control measure in staffing the executive branch.

There’s also an added bonus. If the Court accepts the case, it will be one of the few decisions that deal with actual constitutional text, instead of the “penumbras” and other implied meanings that the justices have imported over the years.

Then again, that may be why this case gets snubbed.

H/T: Politico

Tim is right that today’s DC Circuit Court ruling on the NLRB appointments is “a humiliating rebuke for [Barack] Obama.” It also reads well, with solid textual analysis supporting its interpretation of the “Recess Clause.” That said, its holdings are so sweeping — both as to what constitutes “the Recess” of the Senate and as to what it means that a vacancy can be filled by such appointment (only) if it “happen[s]” during the Recess — that while they certainly make sense in law and logic, they may go so far as to violate enough existing practice as to make the full circuit en banc or the Supreme Court to reject the full scope of the ruling. Being a realist, I can certainly see a final result that narrows the scope of this ruling (and of it definition of “Recess” and “happen”), but that still throws out Obama’s appointments and still upholds the main thrust of today’s ruling, which is that there are serious limits to the “Recess appointment” power.

But allow just a little further prediction. When the high court so rules, and Obama’s “humiliation” is confirmed, The One in the Oval Office will have a conniption fit. As it so happens, such a high court ruling will probably be just one in a series of about five or six key decisions in the next 18-24 months that will go directly against Obama administration arguments, actions, and abuses. Look, therefore, for Obama to resurrect his constitutionally dangerous, full-frontal assault against the Supreme Court and the courts in general, trying to undermine their very legitimacy. In fact, so unhinged may be Obama’s power lust that he might even try to openly defy an explicit Supreme Court ruling, maybe even citing Andrew Jackson’s infamous (perhaps apocryphal) statement from Worcester v. Georgia that the chief justice “has made his decision; now let him enforce it.”

In short, I see in this and other developing cases the potential for serious constitutional crisis, brought on by Obama’s authoritarian impulses. I hope I’m wrong.

It’s sad commentary on our current political state that the Obama Administration must be reminded that the Senate has to actually be in recess for it to attempt a “recess” appointment.  One would expect a former law professor to possess a better working knowledge of the Constitution, but alas.

In a welcome and important ruling this morning, the U.S. Court of Appeals for the D.C. Circuit – effectively the nation’s second-highest court – held that the Obama Administration acted illegally when it attempted to place three new members on the National Labor Relations Board (NLRB) without Senate consent.  Under Article II, Section 2 of the U.S. Constitution, a President may appoint “Officers of the United States” subject to “Advice and Consent of the Senate.”  It adds, however, that, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Here’s the problem.  In a scheme to avoid confirmation hearings and votes, Obama attempted to place three members on the NLRB while “the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.”  Thus, the Senate wasn’t in “recess.”  In fact, other acts by the Obama Administration acknowledge that fact.  As just one example, that period is when the reduced payroll tax was extended with Obama’s approval.

Accordingly, the Court didn’t take kindly to Obama’s maneuver:

An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.  This cannot be the law.”

This is a humiliating rebuke for Obama, and it invalidates all NLRB actions dependent upon those illegal appointments.  Moreover, it effectively invalidates actions by other administrative agencies similarly dependent upon such appointments.  The concept of “a nation of laws, and not of men” has been vindicated today.

By the standard rules of political compromise, Senator Jim DeMint could be forgiven if he decided not to wade into the fight over whether the Export-Import Bank gets reauthorized by Congress. The bank, which subsidizes the business ventures of American corporations overseas, counts Boeing as one of its biggest beneficiaries — and the aerospace giant has a major presence in DeMint’s home state of South Carolina.

As he makes clear in a new op-ed in the Greenville News, however, DeMint doesn’t take stances based on which interests they serve; he takes them based on what principles they represent. From the piece:

When Boeing’s home state labor union ganged up with President Barack Obama’s National Labor Relations Board to try to sue Boeing for building a new factory in North Charleston, I strongly supported Boeing’s freedom to build factories wherever they pleased.

More recently dust has been kicked over the extension of the Export-Import Bank, a federal program that subsidizes American businesses’ exports. Because Boeing receives Ex-Im subsidies, and because I favor winding down the Ex-Im Bank instead of increasing its budget, some ask if I went from being pro-Boeing to anti-Boeing.

Neither. All I’ve ever been is pro-freedom.

In both cases, my guiding principle is the same: liberty.

Freedom isn’t perfect, but it is fair. And any time government hands out favors, they’ll be unfair to someone.

When Washington picks winners and losers, in the end taxpayers always lose, and Ex-Im is no exception.

Kudos to Senator DeMint for standing on the side of liberty and equality before the law, and for opposing the trends toward rent-seeking and crony capitalism. We could use more like him in Washington.

Hans von Spakovsky of the Heritage Foundation makes a compelling argument in a Fox News op-ed that conservatives in Congress must adopt a more confrontational posture in resisting President Barack Obama’s unconstitutional, non-recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau:

There is also no evidence that the House or Senate will take any of the other actions available, such as cutting the NLRB’s budget or passing legislation banning any federal funds from being used to enforce any orders or regulations issued by the Consumer Financial Protection Bureau until the president voids his unconstitutional appointments. The House needs to do more than just hold hearings to enforce its constitutional decision not to consent to a Senate recess.

As for the Senate, it operates almost entirely on “unanimous consent.”

Moreover:

It would take only one senator standing up for constitutional principles and the rule of law to get the ball rolling and shame his colleagues into joining him to fight the president’s tyrannical actions.

He could hold up all of the president’s nominations and bring the Senate to a standstill through quorum calls and continuous objections to unanimous consent motions.

Challenging the President’s lawless attempts to fill powerful regulatory agencies with liberal ideologues should be a no-brainer for any Republican in Congress.  That none of von Spakovsky’s straight-forward recommendations is gaining traction shows that some GOP Members of Congress haven’t learned the Tea Party lesson yet – either defend the Constitution early and often or get ready for a primary challenge.

Today, the Department of Labor announced that the 2011 union membership rate fell to a new record low of 11.8%.   Disturbingly, the rate among public-sector workers now stands at 37%, whereas the membership rate for private-sector employees stands at a historic low of just 6.9%.

Now, National Labor Relations Board (NLRB) chairman Mark Pearce has announced that Obama’s NLRB will push for new rules forcing employers to turn over lists of employees’ private phone numbers and email addresses in a shameless attempt to assist Big Labor in its desperate organizing activities.  After all, unless labor leaders can wrench more dollars from employees’ paychecks, they won’t have as much to spend on Obama’s reelection campaign.  Meanwhile, the government also announced today that the U.S. economy only grew a lackluster 2.8% in the fourth quarter of 2011.  That illustrates once again that Obama’s policies aren’t helping the economy, they’re subduing what should by now be a much sharper recovery.

As we have observed, if the Obama Administration behaves this thuggishly during an election year, just imagine how heedlessly it would behave during a second term when it needn’t worry about reelection.

House Minority Leader Nancy Pelosi sat for an interview with CNBC’s Maria Bartiromo last week on the state of the economy. Based on her remarks here, we can conclude that — as dismal as the current downturn is — it would only be worse if the Sage of San Francisco and her ilk were still running the lower chamber:

h/t: Hot Air

Yesterday was a victory of sorts for those of us who want Congress to clip the wings of the regulatory state.  In a near-perfect party-line vote the House of Representatives passed a measure prohibiting the National Labor Relations Board (NLRB) from harassing businesses like Boeing for moving to business friendly states.

Earlier this year, the liberal majority on the NLRB sued Boeing for opening up a new factory in South Carolina – a right-to-work state – instead of expanding its existing manufacturing presence in Washington state, a union shop state.  For the first time in its history, NLRB interpreted its congressionally delegated authority to include the power to punish a private business for relocating some of its operations to more profitable climes.

Congress now has an opportunity to correct NLRB’s overly broad interpretation.

NRLB’s unprecedented decision merits a brush back response like the one the GOP-controlled House delivered yesterday.  Though the measure is likely to die in the Democrat-controlled Senate, the Boeing-NLRB tussle should be some Republican presidential candidate’s Exhibit A on the regulatory overreach of Obama’s federal government.

Unions can only grow if businesses grow first.  It’s time for the liberals at the NLRB and elsewhere to remember that simple truth.

H/T: Washington Times

In this week’s Freedom Minute, CFIF’s Renee Giachino discusses how everyday American workers are being used as political pawns to advance the job-killing agenda of big labor unions.  

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

The fraudulently-labeled Employee “Free Choice” Act (EFCA) is one of the most dangerous legislative proposals since Barack Obama assumed office.

EFCA would literally eliminate the sacred democratic secret ballot during union elections, which has caused overwhelming majorities of Americans to oppose this scheme.  It would also do such things as allow federal arbitrators to dictate wages and work rules upon employers and organized employees for the first time.  During this period of economic difficulty, with Big Labor already causing American jobs to disappear or move overseas, now is hardly the time to make employment even more difficult in this country.

Fortunately, EFCA appears temporarily stalled in Congress.  But that isn’t preventing the Obama Administration, Harry Reid, Big Labor and liberal activists from seeking alternative ways of imposing EFCA and its toxic job-killing provisions upon the American economy.

Namely, Obama has nominated radical union activist Craig Becker to serve on the five-member National Labor Relations Board (NLRB) to achieve their goal.  As Stewart Acuff of the Utility Workers Union of America has baldly stated, “if we aren’t able to to pass the Employee Free Choice Act, we will work with President Obama and Vice-President Biden and their appointees to the National Labor Relations Board to change the rules governing formation of a union through administrative action.”

And you thought ObamaCare was the only thing liberals were going to try to force down America’s throat against our will?

Please contact your Senators immediately (locate your Senators’ contact information here) and demand that they support the Senate filibuster against Craig Becker.  Otherwise, EFCA may soon become a reality despite our successful efforts so far to stop it in Congress.   The American economy and everyday workers will otherwise pay the price.