Policy: Labor

NLRB nominee Schiffer was card check advocate for AFL-CIO

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Beltway Confidential,Sean Higgins,Labor unions,Labor,NLRB,Analysis,Card Check

National Labor Relations Board nominee Nancy Jean Schiffer was an aggressive advocate of “Card Check” legislation during her time as the AFL-CIO’s associate general counsel.

Card Check would end secret ballot voting by employees in workplace representation elections.

“The Employee Free Choice Act is needed to address a severe violation of human rights: the pervasive denial of America’s workers’ freedom to form unions and bargain collectively,” Schiffer told the House Education and Workforce Committee in 2004.

The EFCA was the Democrats’ main Card Check legislation.

She said the workplace is an “an inherently coercive environment” that violates employee collective bargaining rights.

Schiffer said the remedy for this was Card Check, which would remove the employers’ ability to call on the NLRB to hold a secret ballot workplace election when unions try to organize their business. Such elections are meant to ensure that a majority of workers really do want to join a union.

The Senate Health, Education, Labor and Pensions Committee approved Schiffer’s nomination Wednesday to serve on the NLRB. The committee also approved the nomination of Kent Yoshiho Hirozawa the same day.

The full Senate is expected to take up their nominations and that of three others to the NLRB next week. Republicans have pledged not to try to block the nominees. Approving all five would give the NLRB a 3-2 Democratic majority.

Schiffer and Hirozawa were nominated to the NLRB on July 16. The Senate panel held one, brief hearing on their nominations Tuesdaybefore sending them on to the full Senate on party-line votes.

At the Tuesday hearing, Sen. Tom Harkin, D-Iowa, made a point of asking Schiffer about her views on Card Check. She told Harkin that the NLRB cannot enact such rules on its own.

“The provisions of the Employee Free Choice Act require congressional action,” she said.

The colloquy was clearly meant to refute claims by conservative pundits and pro-business groups that a Democrat-led NLRB might try to enact Card Check rules unilaterally.

Schiffer did not express her own opinion of Card Check, though. She did, however, make her feelings plain in her 2004 House testimony on the subject:

NLRB (workplace organizing elections) elections are conducted in an inherently coercive environment – the workplace. The employer, not the union, has ultimate power over employees. Only the employer has the ability to withhold wages or grant increases in salary, assign work and shifts, and ultimately discharge workers — the capital punishment of the workplace.

In the end, even when conducted by NLRB staff as professionally as possible, elections under the NLRA are not democratic, because the workplace is not democratic.

The Employee Free Choice Act is intended to remove these obstacles and at the same time improve cooperation between employees and employers by eliminating the requirement of mandatory voting when the majority of workers has already expressed its decision to self-organize. Under current laws, it is perfectly legal for a majority of employees to choose union representation without the need for an election; however, as it now stands, their employee has the right to veto their decision, absent an NLRB election. In civil society we regularly encourage participation and membership in other organizations: book and sporting clubs, religious organizations, and advocacy groups which further our collective and individual interests. In keeping with one long-declared federal policy of encouraging workers to organize and bargain collectively, we should make it no more difficult for them to form labor unions.

This is rather one-sided view of Card Check. Book and sporting clubs do not, for example, have the power to coerce dues from people who do not want to belong to the group, a power unions have in 26 states.

When unions try to organize workplaces, they must first gather the signatures of a majority of employees who claim they want union representation.

Management can either accept this and negotiate a contract with the union or call in the NLRB to hold an election if it suspects the union got the signatures through fraud or coercion.

As Schiffer’s 2004 testimony as an AFL-CIO lawyer shows, Big Labor badly wanted the process ended when they present the signatures to management.

They pushed congressional Democrats hard to change the law after President Obama, who backs Card Check, was elected in 2008. That effort fizzled out when moderate Democrats refused to join.

Schiffer’s testimony Tuesday that NLRB cannot do this on its own may be sincere, but her earlier testimony shows her strong bias against business.

It’s worth noting that she only got the nomination in the first place because Senate Republicans forced two others, Sharon Block and Richard Griffin, to have their nominations pulled. The GOP aggressively tried to spin this as a victory.

If any of Republicans still think they traded up, Schiffer’s 2004 testimony ought to refute that.

Hat tip: The Free Beacon.

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