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PaperclipPerfector  1mo ago (text post)   28315 thread views

Culture War Roundup for the week of September 23, 2024

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Things I did not have on my bingo card this year: the National Audubon Society, you know, the organization of wild bird enthusiasts, has decided to try and get the National Labor Relations Board declared unconstitutional. Because apparently Audubon was having ongoing squabbles with their staff union and the NLRB was trying to slap them on the wrist for it.

So we have a few different questions here:

  1. Do you think the NLRB should be abolished?
  2. Do you think the Roberts court is likely to actually abolish it, due to this case or any similar case?
  3. If they do abolish it due to the Audubon case, or even just hear the case and this gets a lot of mainstream media attention and handwringing, how damaging is that likely to be to the Audubon Society, considering that most of their donors likely lean left?

https://www.nlrbedge.com/p/audubon-society-argues-nlrb-is-unconstitutional

I don't necessarily think the NLRB should be abolished, but I do think that its structure leads to a predictable flip-flopping on key legal rulings every 4-6 years in a way that undermines the legitimacy and continuity of the law.

Whatever happens, it's ridiculous that the legal status of a thing just arbitrary flips back and forth and that both companies and unions have to gamble on the result of a Presidential election. It's even more ridiculous that before the end of Chevron, the courts would simply shrug and say that if both interpretations of the statute are reasonable then the NLRB can flip flop between them as many times as they want for no other reason than the President of the opposing party finally got to nominate enough members.

What does the NLRB do? I thought unions were like some kind of trade association where all workers join and they collectively bargain with employers if they want access to their skilled labor pool.

That sounds fine, but then I learned that the NLRB exists and it actually makes it illegal for employers to refuse to negotiate with the trade association? And that their labor pool can actually be very unskilled? I'm reminded, recently, that Starbucks was ordered to re-open stores that they shut down because they were union shops?

If a business isn't allowed to shut down without NLRB approval and it must only employ some designated union, I'm going to say they're bad and should have this power revoked.

The NLRB has a basic guide you might find informative.

What does the NLRB do?

The NLRB has two primary functions. First is to hear and adjudicate complaints about unfair labor practices by unions and employers. Second is to oversee union elections as a kind of third party arbitrator.

I thought unions were like some kind of trade association where all workers join and they collectively bargain with employers if they want access to their skilled labor pool.

In the United States the relevant verbiage is a "collective bargaining unit." What makes up a collective bargaining unit is at the NLRB's discretion, subject to some statutory constraints. Generally the idea is that it involves a group of individuals with the same or similar economic interest who are sensible to group together for the purpose of collective bargaining. In the United States you probably often hear about the "UAW" or "Teamsters." These groups are not collective bargaining units as such but are made up of many groups (often called local unions) who are. From the perspective of US labor law the local unions are the "real" unions, with rights and obligations with respect to employers and others.

That sounds fine, but then I learned that the NLRB exists and it actually makes it illegal for employers to refuse to negotiate with the trade association?

It is not really the NLRB as such but the National Labor Relations Act that imposes obligations on employers to negotiate in good faith with recognized unions of their employees.

And that their labor pool can actually be very unskilled?

Correct, there is no particular requirement that employees be "skilled" (whatever that means) for them to constitute a collective bargaining unit under US law.

I'm reminded, recently, that Starbucks was ordered to re-open stores that they shut down because they were union shops?

Yes. The NLRB found that Starbucks closed those stores because the employees at those stores had voted to unionize, which is an unfair labor practice. One of the examples they give in the basic guide is an employer threatening to shut down a plant as a way of discouraging plant workers from organizing.

If a business isn't allowed to shut down without NLRB approval and it must only employ some designated union, I'm going to say they're bad and should have this power revoked.

This is kind of like anti-discrimination law. It's not that businesses can't shit down locations without NLRB approval, it's that they cannot shut down a location because its employees decided to unionize. I agree ordering the business to re-open a location is not great, but I'm open to hearing what other remedy would be appropriate.

What does the NLRB do?

I'm not a huge fan, but they do have some function in ensuring that the right of workers to chose to unionize or to chose not to unionize is respected. At the very least, overseeing that voting is a role for a neutral third party.

If a business isn't allowed to shut down without NLRB approval and it must only employ some designated union, I'm going to say they're bad and should have this power revoked.

A business is allowed to shut down for any business reason. It cannot shut down because the workers there voted to unionize, that would be unlawful retaliation.

That's the kind of factual question that is litigated all the time and can be resolved by the normal judicial process. For example, one could look to whether other stores with similar performance shut down during that period, or what the usual process would be for underperforming stores.

Someone has to be decide on it, the NLRB should probably let the federal courts do more of that though.

A business is allowed to shut down for any business reason. It cannot shut down because the workers there voted to unionize, that would be unlawful retaliation.

Unless they're allowed to hire non-union workers, I consider it a valid business reason to withdraw from the market.

Being forced by law to negotiate with some group to access labor is unacceptable.

I'm aware on surface reading that this is retaliatory but fuck that.

This is essentially leading to a government enforced cartel that decides all baristas now must be paid X.

I consider it a valid business reason to withdraw from the market.

This is still one step removed from the 'real' business reason though. The NLRB alleged that Starbucks' closure were part of a strategy of intimidation, not simply a response to business conditions downstream of unionisation. Which is to say, they didn't close the stores because unionization made labor too expensive and reduced profitability, rather they closed viable locations as mere retaliation/pour encourager les autres.

Sure, though they only don't want to have a union in their eco-system because it will make labor too expensive and reduce profitability. The fact that it's a step removed doesn't make it less of a valid business reason.

The choice of whether to have a union is with workers. If Starbucks wants to not have one, it needs to convince workers that they will benefit more not having one.

I understand and respect that this is your opinion.

For the better part of the century, the core tenant of US labor law is that If a majority of employees vote to empower a union to negotiate on their behalf, The business is indeed required by law to negotiate with that union.

I thought unions were like some kind of trade association where all workers join and they collectively bargain with employers if they want access to their skilled labor pool.

That's what they should be. In reality the NLRB and labor law make them more like a local Mafia. Pay us for protection or we'll destroy your business. This is but one example of why libertarians want less regulation: any government power is always corrupted to enrich whoever can get their hands on it.

Why does the Audubon society have a union? Like do they actually employ that many people in normally union roles, or is this mostly thinking unions sound cool?

Why wouldn't they have a union? It's in every corporation's self-interest to become a monopsony on labor so they can pay below market equilibrium rates for talent. It's in every worker's interest to become part of a monopoly on labor so they can force pay above market equilibrium.

It's in every worker's interest to become part of a monopoly on labor so they can force pay above market equilibrium.

It's not in my interest now. It wasn't in my interest when I did factory work either. I've never had a job where I perceived it to be in my interest.

Did it never occur to you that earning more money for doing the same work would be better for you?

Sure. I'd also like a pony, and to rob banks and shoot it out with the police without all the pesky bleeding and screaming and dying. Sadly, reality intrudes.

When I observe unionized workplaces, I see inefficiency, doors closed to good workers, and economic failure. By contrast, the workplaces I've observed that were most efficient, dynamic and productive were, as a rule, not unionized. I like being able to find a job by demonstrating positive value to a prospective employer offering what I consider a reasonable wage, without then having to persuade a second group of people who believe that they have a direct economic interest in keeping me unemployed.

Have you ever ever obtained any sort of credential with a barrier to entry that enabled you to do specialized, abnormally renumerative work? If so, that's exactly the sort off thing I'm talking about. Unions are only one of many ways to obtain a labor monopoly.

Have you ever ever obtained any sort of credential with a barrier to entry that enabled you to do specialized, abnormally renumerative work?

I got a forklift certification once. Does that count as a "labor monopoly"? I think I'm pretty glad that forklift operators are required to undergo safety training and a comprehension and skills test, but I'm not sure what that has to do with unions.

Other than the forklift certification, no, I've never gained any credential of the sort you describe.

If you got the forklift certification because you expected to make more money-- because the pool workers legally allowed to do jobs involving forklifts is artificially constrained by the certification process-- then you've benefited from the same economic mechanism unions do.

Morally, you're free to make a distinction between getting a forklift certification versus forming an insulin cartel or shutting down imports across the country to get $2 more an hour. But mechanically and economically, it's the same sort of behavior guided by the same sorts of incentives.

To engage in group negotiation over wages, benefits, and working conditions, because that's a stronger bargaining position than letting every employee bargain individually, and people on the left tend to think that's a positive good even if the employer is currently claiming to be benevolent?

The most interesting thing about this case (and the similar ACLU dustup with the NLRB) to me is what it says about the current state of liberal non-profits. They're being eaten alive by the extreme and conflicting demands of their staffs. The inmates have taken over the asylum, and now the managers have suddenly realized that the massive regulatory state they spent their whole lives supporting makes it impossible to do anything about it. You know things must be bad internally for these organizations to be doing the Conservative Legal Movement's work for them free of charge.

The "inmates taking over the asylum" theory is that junior staffers at lefty orgs are pushing wokestupid at the expense of the mission of the org, and management are unable to stop them. The ACLU case is the opposite. A manger fired a staffer for what they claimed to be wokestupid reasons, but was probably actually just powertripping management, and the ACLU doubled down because the manager was black. Unless you think the black first-line manager counts as an inmate taking over the asylum, this is a wokestupid vs free speech type case. The Audobon case is nothing to do with wokestupid - the underlying labour law case is a highly technical issue about information exchange in union contract negotiations.

In both cases, I think management hired outside counsel and told them to put anything in that looked like a winning argument, which is standard practice in cases where the stakes are high enough. And given the Jarkesy situation I discuss further down, these things are potentially winning arguments. I doubt either the ACLU or Audobon leadership read the briefs being submitted on their behalf, although their in-house lawyers should have done and should have spotted and escalated this kind of thing. I work in a bank and one of the subjects of the fun, fun, mandatory online trainings we do every quarter is that it is everyone's job to stop and escalate if they see something that could be an utter public humiliation (or reputational risk, as the corporate types call it).

I suspect this is just their lawyers writing down every argument they can think of. But nobody but Clarence Thomas (if he's in a mood) is going to bite on that one. No matter how justified sweeping not just the NLRB but the entire administrative state would be.

Gorsuch might bite.

The fifth circuit has already bitten. In SEC v. Jarkesy the 5th circuit ruled that the SEC was unconstitutional because an officer with decision-making power (in this case an administrative law judge) who enjoys two layers of civil service protection (i.e. the formal process to fire an SEC ALJ for cause can only be initiated by the SEC members, not the President, and the SEC members themselves cannot be fired by the President without a formal process) is under insufficient Presidential control to comply with the Appointments Clause. Jarkesy was upheld by SCOTUS on the basis that SEC ALJ's violate the right to trial by jury, without reaching the Appointments Clause argument.

The identical logic trivially applies to the NLRB, and at least one district court in the 5th circuit has already ruled that the NLRB is unconstitutional on that basis. Richard Hanania has a good layman's explanation. This is why there is a sudden spate of lawsuits by everyone and his dog making the argument in different districts and circuits.

Both Jarkesy arguments figure in the Audubon case, although it is less obvious that the jury trial argument applies.

SCOTUS don't want to take the case, but I don't see them avoiding it - there is going to be a circuit split sooner or later. A less conservative Court ruled that the Public Companies Accounting Oversight Board was unconstitutional on similar grounds, but the remedy was to weaken the civil service protections of the board members, not to toss the whole thing out. Thomas, Alito and Gorsuch are going to follow that decision. Roberts is not going to be the fifth vote for an opinion that blows up large swathes of the administrative state, so it comes down to Barret and Kav.

The ACLU has been absolutely hammered in left-wing circles for filing a lawsuit that would blow up the NLRB (a different argument to do with technical defects in the appointment of the NLRB General Counsel) but MSM coverage of the case focused on the substantive argument (which was wokestupid vs free speech - the employee in question was fired for bitching about her manager to co-workers, which would normally be protected under labour law, but which the ACLU said was fireably racist because the manager was black). So I think Audubon would survive, but make a lot of enemies.

The Supreme Court, as is Robert's wont, completely nerfed Jarkesy. It only applies where the administrative law is in an area already covered by common law. So e.g. FAA regulations are completely untouched and you can still be penalized without a trial for violation thereof. I don't know if labor law would fall into that area or not; it seems like something that definitely would have been covered by common law before the NLRB.

The Supreme Court didn't reach the Appointments Clause issue of Jarkesy, which is therefore still good law in the 5th circuit. This is why every lawyered-up company (even lefty nonprofits!) in dispute with a union is filing "The NLRB is unconstitutional per Jarkesy" briefs.

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