Oregon Tax News

By Lester Smith
I am going to address an important issue that no one is talking about. Actually an issue that is difficult for someone to articulate and not get into “politically correct” trouble. It is an issue that will be the promised land for workers; hell for employers; and, full time employment for management labor lawyers like me. It is a topic you need to understand. It will make you listen more closely to what Hillary and Obama have been saying.
Most of these new laws have already been drafted and are waiting to be rolled out. Some have been on labor’s agenda for years. They all are titled in important sounding but devious words. Here are a few:
“The Employee Free Choice Act”;
“The Patriot Employer Act”;
“The Respect Act”; and
“The Working Families Flexibility Act”;
There are more but lets look at these few.
Employee Free Choice Act
The Employee Free Choice Act is not new. At the start of the most recent session of Congress this bill passed the House but as you might guess got stuck in the Senate because of the reality of a Presidential veto. Plus, Labor decided to back off because it is a “political year” and if a Democratic President is elected passage will be a “no brainer.”
This law is not about “Free Choice” at all. The law will end 75 years of employee free choice in secret ballot elections conducted by the National Labor Relations Board. It is in these neutral elections wherein employees have been free to decide if they want Union representation in their work place after a Union comes in and organizes and campaigns among the employees. In those elections the Union to win only needs 50% +1 of the vote. In these campaigns an Employer can campaign too – but really under the current law the employer does so with both hands tied behind his back.
Under the Employer Free Choice Act if 50% +1 of the employees sign a union representation card or petition and the Union takes those sometimes questionable signatures to the NLRB, the agency will not hold an election but instead certify the Union as the collective bargaining representative.
And, the Employee Free Choice Act has another kicker. For first time, at the end of the bargaining process for a collective bargaining contract the Employer will not be allowed to take a strike. Instead, first time negotiated contracts will be decided by “arbitration.” Under this scheme, you can be sure initial Union demands will be high and this process extremely inflationary. As you may know outside arbitrators love to split the baby. We have seen this happen in the Oregon public sector with “interest arbitrators” in situations where public employees cannot strike (by the way, this same “card check” law was passed by the Oregon legislature this past session for public employees).
Patriot Employers Act
The Patriot Employer Act is another high sounding law with bad implications for employers and good ones for Unions. The bill was introduced last August in the Senate by Barrack Obama. It is devious. For a 1% tax credit on corporate profits the “patriotic employer” to get the tax break must:
1. Agree not to outsource work overseas;
2. Provide employees with a pension plan;
3. Pay at least 60% of employee health insurance premiums; and
4. Agree to remain totally “neutral” in any Union organizing efforts;
In neutrality situations even with the current NLRB election process Unions win 90% of the time. And, so under this alleged patriotic law the U.S. would have two kinds of corporate tax rates. One for Union companies and one for non-union companies.
The RESPECT Act
The Respect Act (Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers) Act includes a long agenda of items desired by Unions. Basically this bill will bring significant amendments to the National Labor Relations Act. This law has worked so well that it has not been seriously amended since 1959. Among other things parts of this Act will:
1. Change the 75 year old definition of a Supervisor and bring more workers into Union collective bargaining agreements. This is true “sour grapes” and the proposed comes from Union dissatisfaction about a set of NLRB cases the Union’s actually won.
2. Potentially allow for Minority Unions within a work force. This could be true where a Union already is in place among the majority of the employer’s employees or even if a Union is not present. Logic tells us that dealing with one Union should be enough. Now it could be a multiple of Unions!
3. Add new penalties, financial and otherwise to employers where unfair labor practices are committed. Such things as where an employer is found not to have bargained fairly or in good faith with a union; or, where an Employer discharged an employee for their alleged protected, concerted or union activities.
4. Kill off the right for an Employer to have strike replacements when faced with the Union’s strike. Remember how President Reagan replaced the flight controllers? The Unions are still mad about that. If a Union strikes it wants it both ways. First no strike replacements. Second federal and state unemployment benefits for strikers. Again, this is a concept that is clearly inflationary. In my judgment I can envision where this change to the law could actually create the option of a strike or forcing the employer to go to arbitration about contract terms as described above.
5. Killing the Reserved Gate Doctrine. This involves a Union hated US Supreme Court ruling that comes from a case that allows for the creation of a separate gate at construction projects where one union on the job site has a dispute with one of the many employers that may be working at the common site. This rule has allowed the non impacted union workers of the other employers on the site to continue to work by the establishment of special neutral gates reserved exclusively for those non-impacted employers. This amendment would end the common sense behind the rule and impose “Union Solidarity.”
Working Families Flexibility Act
One more little gem to mention is the “Working Families Flexibility Act.” This is known as “the Union of One” bill and is supported by both Senators Clinton and Obama. The law would require an employer to negotiate in good faith with an individual employee who desires some change in certain conditions of work such as days, hours, the location, etc. The bill includes a five step procedure that requires meetings between the employer and the employee. If the employee’s request is not granted the employer must provide written reasons to the employee that include:
1. The costs to the Company if it agreed to the change;
2. The effect the change would have on customer demand; and
3. The impact of the change on the overall financial resources of the Company.
And, in the procedures used in the five steps the employee is entitled to submit written documentation and to have with them a representative of his/her choice such as an attorney or union representatives. Violations will have monetary penalties. Can you imagine what this little bill will do to an employer’s human resources department? Double them in size?
Conclusion
Can you believe the potential horrors behind these innocent sounding proposals? Will they pass? The Employee Free Choice Act and the many of the amendments to the NLRA are a lock. The Patriot Employer and Flexibility Acts are very strong possibilities.
Labor has been waiting a long time for this moment when all the stars line up with the legislative and executive branch. Of course, all these new laws coupled with a Democrat dominated NLRB and a Democrat appointed NLRB General Counsel will make an employer’s plight in coming years quite unbelievable. And, there will be countless changes in other employment laws. For example wage and hour laws and even the Family Leave law will change. The latter involves unpaid leave now, but you can be sure that will become paid leave!