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Column: How anti-union southern governors may be violating federal law
Six Republican governors in the Deep South want their constituents to know that they’re looking out for them.
That’s why they issued a joint statement earlier this year condemning the organizing campaign launched by the United Auto Workers at auto plants across the region.
“As governors, we have a responsibility to our constituents to speak up when we see special interests looking to come into our state and threaten our jobs and the values we live by,” the governors said.
We have one federal labor policy, not 50 different state policies, when it comes to union organizing and collective bargaining.
— Benjamin Sachs, Harvard Law School
Three of the governors have gone further — signing laws denying state economic development subsidies to any employer that voluntarily recognizes a union (that is, without insisting on a formal vote by workers). They’re Kay Ivey of Alabama, Brian Kemp of Georgia and Bill Lee of Tennessee.
These steps raise the question of whether those governors and other political leaders are breaching federal labor law by their actions, which could prompt the government to invalidate unsuccessful union votes and order new elections.
“We have one federal labor policy, not 50 different state policies, when it comes to union organizing and collective bargaining,” says Benjamin Sachs, a professor of labor and industry at Harvard Law School and the author of a recent article examining how the actions of anti-union politicians may have illegally interfered with employees’ right to “a free and untrammeled choice for or against” a union.
Sachs acknowledges that the rules governing federal preemption of state labor laws are murky about the conditions in which federal labor law would prevail, and also the point at which politicians’ actions render union representation elections unfree and unfair — threshold findings that would prompt the National Labor Relations Board to invalidate an election and order a new vote.
That said, “Alabama probably can’t condition its economic incentives on the relinquishment of the federal right” to voluntary recognition of a union, Sachs told me. But he adds that how any such case unfolds would depend on the federal court that heard it.
Political interference in union organizing campaigns in the South isn’t new. In 2014, Sen. Bob Corker of Tennessee and the state’s then-governor, Bill Haslam — both Republicans — threatened Volkswagen with retribution for taking a tolerant view of a UAW organizing campaign at its factory in Chattanooga.
One visiting VW executive referred positively to the labor-management “works councils” common in the company’s home, Germany: “Volkswagen considers its corporate culture of works councils a competitive advantage,” he said.
Corker, a former Chattanooga mayor, voiced an almost certainly specious claim that VW executives had “assured” him that the company would open a new SUV manufacturing line at the plant — if the workers turned the UAW down. A local VW executive denied that.
After losing the election, the UAW filed an unfair labor practices complaint with the NLRB, but ultimately withdrew it. The union lost another election at the plant in 2019, but two months ago it won a third election there, its first victory at an auto plant in the Deep South.
As the UAW stepped up its campaign to unionize other plants in the South, the region’s Republican political leaders pushed back hard. In their joint statement, the governors of Alabama, South Carolina, Georgia, Mississippi, Texas and Tennessee accused the union of unspecified “misinformation and scare tactics.”
Parroting an argument straight out of the corporate anti-union playbook, they said, “The experience in our states is when employees have a direct relationship with their employers, that makes for a more positive working environment. They can advocate for themselves and what is important to them without outside influence.” All six states have automobile plants that could be targeted by the UAW.
One question relevant to whether the governors have crossed over to engaging in unfair labor practices that could invalidate a union election, Sachs says, is whether the NLRB could judge them to be “agents” of the employers. In that case, the board might consider their actions to be tantamount to actions by an employer interfering with the workers’ right to vote in a free and fair election.
“It doesn’t seem too crazy that the board might find the elected officials to be agents of the employers,” Sachs says. In several cases in which an employer didn’t disavow statements by elected officials warning a plant would close or there would be a loss of jobs if its workers voted to unionize, the board found the election to be unfair. In similar cases, the board does not have to find that there was direct contact between the politicians and the employer.
The chief target of the anti-union laws signed by Ivey, Kemp and Lee is the “card check” procedure, one of the two paths to union recognition under federal labor law — the other being a secret ballot. In the card check process, after more than 50% of employees at a workplace sign authorization cards seeking representation by a union, the employers can voluntarily recognize the union, waive any demand for a secret ballot among the workers, and participate in negotiations.
The Alabama, Georgia and Tennessee laws deny state economic incentives to companies that accept card check authorizations without demanding a secret ballot. They also forbid employers to voluntarily provide unions with contact information for employees without the workers’ prior consent. These both are requirements that obviously make unionization drives harder.
Like other Republican state initiatives, the anti-unionization laws were incubated on the far right — specifically the Koch-backed American Legislative Exchange Council, or ALEC — the source of model laws aimed at cutting taxes, hamstringing healthcare reforms, privatizing public education, blocking environmental regulations and other such conservative hobby horses.
The anti-union laws in the three states are reproduced almost verbatim from a model law ALEC dubbed the “Taxpayer Dollars Protect Workers Act.” To put it another way, neither the state legislators nor the governors had to break a sweat to draft and enact these measures — they were spoon-fed the texts.
Southern states are generally quite candid about their efforts to attract manufacturers by guaranteeing them a low-wage rank-and-file workforce and union-free factory floors. On its economic development web page, for example, Oklahoma even brags about how much lower than national averages are the median hourly wages in 12 occupational categories — $17.01 for machinists vs. $19 nationally, $26.17 vs. $30.75 for construction managers, and so on.
Oklahoma doesn’t have any auto plants, but hope springs eternal. Oklahoma and the six states whose governors signed the anti-union letter are all “right-to-work” states, which ban contracts requiring all workers in a unionized workplace to be union members.
In signing Alabama’s measure denying economic incentives to employers that voluntarily negotiate with unions, Ivey declared, “Alabama is not Michigan. … We want to ensure that Alabama values, not Detroit values, continue to define the future of this great state.”
She said a mouthful. The median annual wage in Alabama was $41,350 last year. In Michigan, where unions are popular, it was $46,940. That’s higher than in any of the other states whose governors signed the anti-union letter. (The median wage in Mississippi, whose governor, Tate Reeves, signed the joint statement, was $37,500, the lowest in the nation.)
Whether states can use their economic incentives to ban card check recognition may have to be weighed by the courts. As John Fry of Harvard Law observed in a report earlier this year, states clearly can’t outlaw card check agreements directly — such agreements are legal under federal law, which protects voluntary recognition of a union and the voluntary sharing of employee contact information.
As for wielding economic incentives as a weapon, the Supreme Court has ruled that states can impose labor-related rules mostly when they’re applied to projects in which the states have a direct interest, such as on public works projects.
But the issue is almost certain to come before the courts again; following its negotiating successes with the Big Three automakers last year, the UAW announced a two-year, $40-million campaign to organize nonunion plants “across the country, and particularly in the South.”
The union lost a unionization election last month at Mercedes plants in Alabama, but has now turned its attention to a Hyundai plant in the same state. Politicians across the South are sure to react with ever more draconian laws and policies aimed at forestalling unionization. Will they be smart enough to keep on the right side of the legal line? Possibly, but that’s not the way to bet.
The Justice Department accuses Visa of unfairly stifling competition in debit cards, claiming the company has maintained a monopoly by imposing or threatening to impose higher fees on merchants that also use other payment networks.
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President Biden’s top antitrust enforcers have promised to sue monopolies and block big mergers — a cornerstone of the administration’s economic agenda to restore competition to the economy.
Below are 15 major cases brought by the Justice Department and Federal Trade Commission since late 2020 (including cases against Google and Meta initially filed during the Trump administration just before Mr. Biden took office).
The government has won several but not all the cases. And with only a few months remaining for the current administration, the number of suits is climbing, as regulators go after dominant companies in tech, pharmaceuticals, finance and even groceries.
In a lawsuit, the D.O.J. said that more than 60 percent of debit transactions in the United States run on Visa’s network, allowing it to charge over $7 billion in fees each year for processing those transactions. Government lawyers argued that Visa penalizes its customers when they try to use competing services and that it has built a monopoly around payment processing.
The Justice Department accuses Visa of unfairly stifling competition in debit cards, claiming the company has maintained a monopoly by imposing or threatening to impose higher fees on merchants that also use other payment networks.
Read more › The F.T.C. accused three big prescription drug middlemen, known as pharmacy benefits managers, of artificially raising prices for insulin drugs and making it harder for individuals to obtain cheaper options. The legal action targeted CVS Health’s Caremark, Cigna’s Express Scripts and UnitedHealth’s Optum Rx and subsidiaries they’ve created to handle drug negotiations. The three companies collectively control 80 percent of prescriptions in the United States.
The F.T.C. files an administrative complaint, which is not yet public, that seeks to prohibit pharmacy benefit managers from steering patients to drugs that make them more money.
Read more › The F.T.C. sued to block Kroger’s $24.6 billion acquisiton of Albertsons, which, if allowed to proceed, would be the biggest supermarket merger in U.S. history. The companies said the merger would bolster their leverage with suppliers; the government contended that it would drive up prices for shoppers and suppress worker wages.
The hearing, a mini-trial, lasts just over three weeks. The judge in the case has yet to issue a decision.
The trial begins in Oregon, where both grocery companies have a significant presence. The case enters the spotlight as high food prices become a critical focus in the presidential race.
Read more ›
The F.T.C. and eight states, plus the District of Columbia, sue to block Kroger from acquiring rival supermarket chain Albertsons. They say the deal would most likely result in higher prices for groceries and weakened bargaining power for unionized workers.
Read more › The D.O.J. alleged Google harmed competition over the technology used to place advertising on web sites. The department and eight states said Google acquired rivals through anticompetitive mergers and bullied publishers and advertisers into using the company’s ad technology.
The trial is expected to take about a month. The government has asked for a breakup of the company, requiring Google to sell off some assets.
Read more › The Justice Department and a group of eight states accuse Google of abusing a monopoly over the technology that powers online advertising.
Read more › The D.O.J. and a group of states sued Google, saying its role in about 90 percent of all internet searches made it a monopoly. The lawsuit, which was filed in the final days of the Trump administration, alleged Google uses exclusive contracts with phone makers like Apple and other companies to feature Google search on their devices, making it harder for consumers to use rival search engines like Bing or DuckDuckGo.
In a 277-page ruling, a federal judge calls Google a monopolist and says it has acted illegally to maintain that monopoly. A trial to determine remedies is set to begin in 2025.
Read more › The chief executive of Google’s parent company, Sundar Pichai, counters the government’s narrative in testimony that describes Google’s deals with other tech companies as having been in the best interest of consumers.
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As a trial begins, Satya Nadella, the chief executive of Microsoft, becomes the government’s highest-profile witness in the case when he testifies that even his company has found it difficult to compete with Google’s search products.
Read more › The Justice Department accuses Google of maintaining its monopoly over search and search advertising, crowding out competition through exclusive business contracts.
Read more › An F.T.C. lawsuit sought to block Tapestry’s $8.5 billion acquisition of Capri, a blockbuster fashion tie-up to bring together Coach, Kate Spade, Michael Kors and Versace. The suit was a rare move by the agency to block a fashion deal, given that the industry does not suffer from a lack of competition.
A hearing, which effectively serves as a mini-trial, begins over whether the government should put a halt to the deal while the F.T.C. can mount a case against the merger.
The F.T.C. sues to block a merger of two fashion companies, Tapestry and Capri Holdings, that would bring together brands like Coach, Michael Kors and Kate Spade. The agency says the deal could force millions of consumers to pay more for “accessible luxury” accessories — less expensive goods sold by high-end firms — because the combined company would no longer have the incentive to compete on price.
Read more › An antitrust lawsuit filed by the D.O.J. and several states against RealPage, a real estate software company, said its technology enabled landlords to collude to raise rents across the country. It was the first major civil antitrust lawsuit to centrally feature the role of an algorithm in pricing manipulation, D.O.J. officials said.
In its complaint, the Justice Department accuses RealPage of enabling a price-fixing conspiracy that artificially raised rents for millions of people.
Read more › The D.O.J. accused Apple of using a monopoly in the smartphone market to stifle competition and inflate prices for consumers. In its suit, the department said Apple blocked companies from offering apps that competed with Apple versions, including Messages and Wallet.
Apple files a motion to dismiss the case, saying its business decisions didn’t violate antitrust laws. It has argued that those decisions make the iPhone a better experience.
The Justice Department and 16 states, plus the District of Columbia, file a challenge to the reach and influence of Apple, arguing that the company has used anticompetitive tactics to keep customers reliant on their iPhones.
Read more › Live Nation Entertainment, the concert giant that owns Ticketmaster, stands accused of illegally maintaining a monopoly in the live entertainment industry. The D.O.J. said Ticketmaster provided exclusive ticketing contracts with concert venues, which helped Live Nation shore up its dominance, depriving consumers of better prices and options.
The Justice Department, joined by 29 states and the District of Columbia, accuses Live Nation of leveraging its sprawling empire to dominate the live music industry by locking venues into exclusive ticketing contracts, pressuring artists to use its services and threatening its rivals with financial retribution.
Read more › A merger between JetBlue and Spirit, which would have created the fifth-largest airline in the United States, was blocked by a federal judge after a D.O.J. challenge. Government lawyers argued that smaller, low-cost airlines like Spirit helped reduce fares and that allowing the company to be acquired by JetBlue, which tends to charge higher prices than Spirit, would have hurt consumers.
JetBlue and Spirit announce that they will not seek to overturn a court ruling that blocked their planned $3.8 billion merger.
Read more › In a 109-page ruling siding with the government, the judge in the case says the merger would “likely incentivize JetBlue further to abandon its roots as a maverick, low-cost carrier.”
Read more ›
The Justice Department files a lawsuit seeking to stop JetBlue Airways from buying Spirit Airlines, arguing that the $3.8 billion deal would reduce competition.
Read more › A lawsuit filed by the F.T.C. and 17 states against Amazon accused the retail behemoth of squeezing merchants and favoring its own competing brands and services over third-party sellers. A trial date is set for 2026.
Amazon asks the court to dismiss the suit, arguing that the F.T.C. failed to identify the harm consumers were experiencing. It says the agency confused “common retail practices” with monopolistic behavior.
The F.T.C. and 17 states sue Amazon, contending its online store and merchant services illegally stifle competition. The lawsuit that raises the possibility of altering the company’s structure.
Read more › The F.T.C. sued to block Microsoft’s $69 billion acquisition of Activision Blizzard, which, if allowed to proceed, would be the largest consumer tech acquisition since AOL bought Time Warner more than two decades ago. The case follows scrutiny of the deal by regulators in Europe. Microsoft makes the consoles and platforms on which Activision’s games are played, and the merger of two companies that don’t directly compete is known as a vertical merger. Cases against vertical mergers have traditionally been difficult to win.
Microsoft says it has closed its deal with Activision Blizzard, signaling that the tech industry’s giants are still free to use their cash hoards to get even bigger.
Read more › In a 53-page decision, a judge says the F.T.C. has failed to show the merger would result in a substantial reduction in competition that would harm consumers.
Read more › The F.T.C. seeks a preliminary injunction to bar Microsoft from completing the deal before the F.T.C. has the chance to argue the case in its internal court. Microsoft argues a delay would essentially be killing the deal anyway.
Read more › In its suit, the F.T.C. says Microsoft’s proposed acquisition of Activision Blizzard would harm consumers because Microsoft could use Activision’s blockbuster games like Call of Duty to lure gamers from rivals.
Read more › The Justice Department sought to block a proposed merger between the largest publisher in the United States and a key rival.
In an order, a judge says that the government has demonstrated that the merger might “substantially” harm competition in the market for U.S. publishing rights to anticipated top-selling books.
Read more › The D.O.J. sued to block UnitedHealth Group’s $13 billion acquisition of health technology company Change Healthcare, arguing that a deal would give UnitedHealth sensitive data that it could wield against its competitors in the insurance business.
After a trial over the summer, a judge says in a 58-page memo that UnitedHealth’s incentives to protect customer data as it grows its businesses outweigh motivations to misuse the information.
In a lawsuit, the Justice Department argues UnitedHealth Group’s deal to acquire Change Healthcare, a health technology company, would give the giant insurer access to sensitive data that it could wield against its competitors.
Read more ›
new video loaded: The U.S. Is Mining for Uranium
September 23, 2024
Miners at Pinyon Plain uranium mine, Arizona.
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new video loaded: Federal Reserve Cuts Interest Rates for the First Time in Four Years
transcript
transcript
Federal Reserve Cuts Interest Rates for the First Time in Four Years
Jerome H. Powell, the Fed chair, said that the central bank would take future interest rate cuts “meeting by meeting” after lowering rates by a half percentage point, an unusually large move.
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Today, the Federal Open Market Committee decided to reduce the degree of policy restraint by lowering our policy interest rate by a half percentage point. Our patient approach over the past year has paid dividends. Inflation is now much closer to our objective, and we have gained greater confidence that inflation is moving sustainably toward 2 percent. We’re going to take it meeting by meeting. As I mentioned, there’s no sense that the committee feels it’s in a rush to do this. We made a good, strong start to this, and that’s really, frankly, a sign of our confidence — confidence that inflation is coming down.
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