How To Deny Employees Free Choice

National Journal

I don’t know whether it would be good for employees, or for the country, if millions more were unionized, as will eventually occur if Congress passes the Obama-backed Employee Free Choice Act, now the subject of a titanic lobbying battle focused on a handful of moderate senators.

I am pretty sure that it has become unduly hard for workers to embrace collective bargaining if they choose, in part because the penalties for employers who fire and intimidate pro-union employees and stall unionization elections are too weak to deter such misconduct.

But I am very sure that the radical changes that the proposed law would make in long-established labor laws are overkill. The most publicized "card-check" provision would essentially end use of the secret-ballot elections that have been required (at the option of employers) for more than 60 years to determine whether a majority of employees want to unionize their workplaces. Even more alarming to some employers is another provision that would empower government arbitrators to dictate contractual terms when unions and management cannot agree.

These measures are not necessary to remedy the employer abuses of which unions complain. They would probably be bad for employees and employers alike, and they might kill countless jobs at a time when unemployment is already soaring.

The card-check provision would require an employer to immediately recognize as its employees’ collective bargaining agent any union that could persuade a majority of the workers to sign union authorization cards. Secret-ballot elections would be held only if requested by unions, which would have little incentive to do so.

Does The Ledbetter Law Benefit Workers, Or Lawyers?

National Journal

This has been a good week, and may be a good year, for lawyers, civil-rights groups and others who think that America needs many more lawsuits to combat what they portray as pervasive job discrimination against women, minorities, the elderly, and the disabled.

Things are not going so well for those of us who fear that the Lilly Ledbetter Fair Pay Act, which President Obama co-sponsored as a senator and signed on Thursday, and other job discrimination bills in the congressional pipeline may be bad for most workers and may benefit mainly lawyers.

Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.

These measures seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire.

This would be justified if job discrimination were indeed pervasive. But the evidence suggests otherwise. Study after study has, for example, cast grave doubt on what appears to be the myth that sex discrimination in the workplace remains rampant more than 40 years after Congress adopted one law broadly banning job discrimination and another requiring equal pay for women and men doing equal work.

Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.

The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.

Online NewsHour: Proposition 209 – November 3, 1997

MARGARET WARNER: Today the Supreme Court declined to hear a challenge to California’s Proposition 209. The 1996 initiative bans race or gender from being a factor in state hiring or contracting decisions and state college or university admissions. We get more now from NewsHour regular Stuart Taylor, senior writer with National Journal and contributing editor to Newsweek.

Stuart, first, just explain what exactly did the court do today?

STUART TAYLOR, National Journal: Strictly speaking, all they did was nine simple words; the petition for a writ of certiorari is denied. What that means is we’re not going to hear this case. They issued it without comment and without dissent. They didn’t say why they weren’t going to hear it. Typically, they do that hundreds–thousands of times each year, and it’s usually not–it’s never a precedent, a national precedent when they do it, and it’s usually not much of a news event. This time, I think, because of the vast importance of this case it is a substantial news event.

MARGARET WARNER: All right. Explain what you mean when you say it isn’t a precedent?

STUART TAYLOR: That means that in lower courts that lower courts around the country are not bound by what the court did today. The U.S. Court of Appeals from the 9th Circuit upheld the constitutionality of Proposition 209, and in the western states that are within its jurisdiction that is now law. But let’s say if Florida–which has thought about adopting a similar measure–does so–and there’s a challenge there, the federal courts in that part of the country will not be banned by what the Supreme Court did today. They will at least theoretically have the option of saying, well, we think it’s unconstitutional. In that sense the argument is not resolved for all time.

MARGARET WARNER: And what is the significance of the court not making any comment whatsoever? They could have made some written comment.

The Law Made Them Do It

The American Lawyer

High school senior Matthew Theurer punched out at & 8:21 A.M. on Tuesday, April 5, 1988, after spending thenight cleaning deep-fat fryers at a McDonald’s in Portland, Ore- gon. He had volunteered for the A all-nighter between two school days. But now he was tired, Theurer told the manager, who granted him relief from his shift later that day.

Then the 18-year-old got into the red 1982 Nissan Sentra that his McDon¨ald’s earnings had paid for and headed for his home town of Estacada, 19 miles away.

A few miles down Highway 224, Frederic Faverty was en route to a job trimming the shoes on a horse when he no¨ticed the red car coming toward him, taking a curve wide. It drifted over the double line-and came straight at him. Faverty swung right, too late.

The head-on crash demolished Theurer’s light compact and flipped Faverty’s tan 1979 Chevrolet Suburban truck onto its side. The 40-year-old Faverty was badly hurt, with extensive leg, hip, and ankle injuries.

Matt Theurer died on impact. The in¨vestigating officer reported that Theurer had apparently fallen asleep at the wheel.

Almost three years later, on March 29 of this year, a Multnomah County circuit court jury concluded that the accident was the fault of McDonald’s. Finding after a five-day trial that the company had negligently worked Theurer such long hours that he was a hazard on the road, the jury awarded Faverty $400,000 in damages, by a 9-to-3 vote.

Less than a week later Theurer’s mother filed a $10 million wrongful death suit against McDonald’s, seeking punitive damages for wanton disregard of the safety of her son and society at large. Her case has not yet gone to trial.