As the subject line above indicates, this is our last (and probably most important) EmployerReport.com post to you. After more than two years, of providing labor union news updates and opinions, we believe it is time to retire EmployerReport.com. However, we are not going away…But more on where we're headed at the bottom of this post.
Despite the fact that the presidential race was decided early last night, we were up well into the wee hours of the morning trying to get a handle on the Senate landscape. However, our telephones began ringing early (as it has been for the past week) with employers concerned about what lies ahead. So, here are four answers to questions that you may have about last night's election:
First question: As President, will Obama bring unity to the country and bi-partisanship to Washington? In a word, Nope.
For all the talk by the media pundits of President-Elect Obama moving to the center and being a "unifying" president, do not believe it for a minute. President-Elect Obama's first appointment this morning was of Rahm Emanuel to be the White House Chief of Staff. Emanuel is a partisan pit-bull (lipstick or no lipstick) and is "hard-wired to go for the jugular," as described in this 2006 article.
Second Question: What about EFCA?
Here's our analysis of things to come on the EFCA landscape:
Don't Breathe a Sigh of Relief on EFCA Yet. While many of the political pundits have stated that the Democrats have not gained a filibuster-proof Senate, you should not allow yourself to be lulled into complacency by thinking EFCA can't pass. If you believe that employers and their employees are out of the woods on EFCA, think again.
Given that Obama's election was all but certain, we have been saying for the past several months to watch the Senate as that is where EFCA will either live or die. As of this writing, the Democrats have a six-seat advantage (56-44) over Republicans in the Senate, which includes Independent Joe Lieberman (CT) and Independent/Socialist Bernie Saunders (VT), both of whom are EFCA supporters.
However, there are still four contests undecided: Alaska*, Georgia, Minnesota, and Oregon.
Even if Democrats don't pick up two of these contests, EFCA stands a good chance of passage, as written. Here's why:
We've been saying for months that the GOP needs to hold at least 42 Senate seats because there are at least two (and likely more) GOP Senators from "union states" that could buckle under Democrat and union pressure. Specifically, Arlen Specter (PA), Susan Collins (ME), as well as two of the contested seat holders above (Norm Coleman of MN and Gordon Smith of OR) may all be gutless when it comes to EFCA. If Coleman and Smith lose their seats, then the Dems only need to pick off two GOPers on EFCA and it's done.
* Note on Alaska's undecided seat: Although it appears that GOP Senator (and
convicted felon) Ted Stevens may actually win his election, it is likely that, if he does, he will be expelled from the Senate. This creates another vacancy that can go either way, depending on what Sarah Palin does.
It appears possible for either of two scenarios under Alaska's law to play out: 1) As governor, Palin could appoint someone (including herself) to fill Stevens' soon-to-be-vacated seat, or 2) there must be a special election held.
If there is an election, it is likely to assume that Stevens' opponent Mark Begich will win. So, to the GOP, a special election should be out of the question--but it all depends on Sarah. [An interesting Huffingtonpost post today speculates that Palin may, in fact, assume Stevens' spot so that she can gain a more national presence for 2012. Although, after her treatment by the media and the left over these past two months, we might question why she would pick Washington over Wasilla.]
So, this brings us back to EFCA…
Either two things will happen by early February—both of which do not bode well for you or your union-free employees:
1. EFCA passes as it stands with some arm-twisting of some gutless GOPers…
OR, as an entirely feasible scenario begins to develop (and is being quietly bandied about):
2. EFCA gets passed in the House immediately following President Obama's Inauguration but gets caught up in the Senate and "compromise legislation" is drafted that contains shortened election time-frames (think two to three weeks), increased penalties for Unfair Labor Practices and a temporary drop on the binding arbitration provision.
(Now, hold on for a moment before giving a collective sigh of relief over option 2…)
Here's how we see this playing out: Assuming that arm-twisting the GOP doesn't work (which we're not convinced of yet), and a compromise is worked out (as described above), the GOP (and the business lobby) will lose their main argument that EFCA is "anti-democratic." Why? Because unions and Dems can then say that they've kept workers' secret-ballot vote intact, dropped binding arbitration, and merely increased penalties on corporate 'scofflaws.'
Under this scenario, unions will still go forward with an all out organizing blitz and succeed in many cases, but fail in some others. It is these failures that they will use to trot out the 'victims evil corporation's union-busting efforts' to justify the need of further labor law reform.
Now, in 2010, they'll use some other issue to pick off a few more Republicans in the Senate (like opposition to the "Fair Pay Act" or FMLA expansion, and a host of other job-killing bills, etc.).
Once a couple more GOPers are picked off, EFCA will be passed in its original form, this time without any sort compromise, filibuster or fight.
Third Question: What else should employers expect?
On the labor front:
Besides the actions on EFCA (as stated above), you should expect the following:
Within the next couple of weeks, you will likely see the pick for Obama's Secretary of Labor to come directly from the union movement. Although Change to Win's Anna Burger has been floated around and the SEIU was Obama's primary backer early on, she may, in fact, be too controversial for an Obama administration since she and her boss (SEIU's) Andy Stern led the break-up of the AFL-CIO three and a half years ago. However, a Burger appointment should not be ruled out.
The R.E.S.P.E.C.T. Act will likely pass without much of a fight. This is the union-backed bill that will cause many people employers now consider supervisors to become "non-supervisors" by altering the National Labor Relations Act's Sec. 2 definition of a supervisor. While many people do not yet realize the ramifications of this bill, it has been flying under the radar for more than a year and we don't expect the GOP will want to waste the political capital of a filibuster (if there are enough GOP senators to muster one) to fight this bill.
Expect a VERY pro-union National Labor Relations Board, since this will be unions' "payback" to the Bush years. You should expect the majority of decisions going solidly against employers.
Expect the Department of Labor to re-interpret attorney's legal advice on union campaigns (specifically the drafting of materials) to be considered "persuader" activity under the LMRDA. There was an attempt to do this during the final days of the Clinton Administration, but was quickly undone when Bush took office.
Expect a ban on the use of permanent strike replacements during economic strikes to come mid-year (perhaps a little later).
Expect the Labor Department to relax unions' reporting requirements on their financial reports to come early next year. This is something that will likely occur before March 31st, when most unions are required to have their LM reports in to the DOL.
Expect expanded use of union-only Project Labor Agreements.
Expect passage of the Public Safety Employee-Employer Cooperation Act which unionizes local public safety employees (i.e., EMTs, paramedics, fire and police personnel), although this would be worthy of a GOP filibuster, there are no constituents (aka voters) to offend by its passage, so it is difficult to imagine a filibuster taking place on this.
On the HR front:
We give high probabilities to the passage of the following:
* Lily Ledbetter Fair Pay Act, the bill that removes the statute of limitations on pay discrimination claims and subjects employers to potential years of back pay.
* Passage of an expansion to FMLA to include parenting responsibilities, as well as paid sick leave.
* Note: Both of these merit a filibuster and the business lobby will likely pursue one to come from the GOP. However, the Democrats would probably love that since they could further demonize the GOP in 2010 for being "anti-woman" and "anti-family."
Fourth Question: What should be done?
It's time to get a lot more aggressive. Although we (and a few others) have been forewarning of this day and EFCA before the name Barack Hussein Obama ever became known to the nation, too few businesses and their associations paid attention. Finally, when people started waking up and despite the millions poured into EFCA education, it was too little too late…
Now, it's time to ratchet it up a notch (or ten).
As we told you (and the world) some time ago, America's voters were the victims of the largest and most expensive union campaign in history. The problem for employers (as well as the GOP), however, is that the advisors and strategists running campaigns in DC do not run union campaigns. So, from our standpoint as ex-union organizers and agents who handle union campaigns for a living, the pathetic outcome of last evening is not surprising at all because we've known what the unions have been saying all along.
Here's some simple advice: F*** the Focus Groups.
The GOP and business lobby have had and continues to have the wrong message (the exception being the new ad from EmployeeFreedom.org which focuses on job security). As we've been calling EFCA the "Kill American Jobs Act" for more than two years, people only came to the realization in the last few weeks that EFCA equals unemployment. That should have been the message all along.
So, for those of you who have spent your corporation's money and are still spending money on the campaign to raise awareness about EFCA, you might want to forward this message along with your next check:
The next EFCA ads that need to be run should focus on the loss of jobs and the closure of companies that unionization will bring through the enactment of a "Union Bailout" or "Union Welfare Act" and should end with "Tell Nancy Pelosi, Harry Reid and President-Elect Obama to reject a union bailout that could cost you your job."
If the EFCA ads continue focusing only on the "anti-Democracy" portion of EFCA, don't be surprised in January when Obama and the Dems compromise with two-week elections and shove it up the GOP's… The Unions Will Have You in Checkmate!
That said, dear reader, as we started this post, we mentioned that this is our LAST EmployerReport.com post.
Tomorrow morning, the lights will be temporarily turned off.
However, please be assured, we are not going away.
Indeed, although EmployerReport.com is being retired, and we cannot tell you right now what we have up our sleeves, we can assure you that what we're planning will drive the union bosses bonkers.
So, with that said, dear readers, we'd like to end EmployerReport.com with a couple inspiring quotes for you:
"Democracy is a device that ensures we shall be governed no better than we deserve." -George Bernard Shaw
"It can't happen without you, without a new spirit of service, a new spirit of sacrifice. So let us summon a new spirit of patriotism, of responsibility, where each of us resolves to pitch in and work harder and look after not only ourselves but each other." — President-Elect Barack Obama, November 4, 2008
"It stands to reason that where there’s sacrifice, there’s someone collecting sacrificial offerings. Where there’s service, there’s someone being served. The man who speaks to you of sacrifice, speaks of slaves and masters. And intends to be the master."Ayn Rand, “The Soul of a Collectivist,” For the New Intellectual, 73
As a final notice to those of you collectivists who happen to read this post: If you haven't read Atlas Shrugged, you better soon for, due to your actions, Atlas has begin his shrug.