Practicing Law in Light of Rothbard

0:00Thank you, Professor. I'm very honored to be a member, an honorary member of the Las Vegas Hoppe gang. We're here to disprove the old adage that, you know, you can't swear with the eagles if you hoot with the owls, and we're all here living proof that that is not true. So I'm going to talk to you just a little bit today about what private lawyers can do in furtherance of the Austria-libertarian model. I started out my career as a union lawyer long ago in Philadelphia, but it didn't take me too long to figure out that I was on the wrong side. So I've now spent the last 15 years just as a hard knuckle management lawyer working to protect the rights of private employers.

0:47I guess the best way to explain that transformation is to quote somebody I'm not fond of quoting, So I'll just paraphrase or modify Winston Churchill's famous saying when he said something to the effect if you're not a Democrat when you're young you don't have a heart but if you're not a Libertarian when you get older you probably don't have a brain so that's the way I explain my transformation anyway I've spent the last decade and a half just protecting property rights private property rights and enforcing contracts after all as Michael Oakeshott famously said The right to contract is really what separates the free man from the slave, that together with the right of association. One of the things that I spend my time doing is fighting and educating people about what I call fascist legislation.

1:40One such legislative act that's been circulating around our legislature in the United States for the last few years is the so-called Employee Free Choice Act. I say so-called because any time a union names something, you can be sure that they named it euphemistically and it really should be called the Employee No-Choice Act, but Employee Free Choice Act, or the acronym is IFCA. So if the National Labor Relations Act weren't already stifling enough on private enterprise, they've now proposed, or the unions through Andy Stern and the other union leaders in the country, have now proposed legislation that would amend the National Labor Relations Act, which if passed will have the most drastic overhauling effect on relations in the private sector between employers and their employees since the National Labor Relations Act passed in 1935.

2:40So if it passes, IFCA will just drastically change the way unions organize in this country in three dramatic ways. So before I tell you about that, I just quickly give you an overview of how unions currently organize. The traditional bottom-up method of organizing is unions go around and they advocate their wares to unsuspecting employees, they get authorization cards signed and when they have a majority of these cards, they take them to the prospective employer and say, look, I have the majority of your employees want me to be their bargaining agent, so you can You can either recognize me voluntarily or we can have an election. So most employers generally petition the labor board for a secret ballot election.

3:27And I say secret ballot because when these elections are held, employees are allowed to go in a ballot booth and exercise their free choice in the privacy of a ballot booth without having the coercion of unions there or peer pressure. and they can actually just choose or more often vote against the union without having threat of reprisal. So once the secret ballot election is held in the traditional method, either the employer or union wins. If the union wins, then they sit down with the employer and negotiate a contract. And that's the key word, they negotiate a contract. They can negotiate until the cows come home. There's no legal requirement that a contract is ever reached at all.

4:16But they do have a duty to bargain in good faith, but they can bargain forever. And if any mistakes are made or violations of the law are made along the way, you know, the biggest penalty that can be imposed on an employer is, outside of extreme circumstances, is they might have to post a government acknowledgement and the acknowledgement that they broke the law and promised never to do it again. But the key is they never have to enter into a contract. There's no duty on them to do that. But if IFCA passes, this is going to change the landscape dramatically. First of all, the secret ballot election will be replaced with card checks. So the unions will still go out and get cards, but once they have the majority, that's it.

5:01Bargaining rights will be granted to them. and the employer will be forced to sit down and negotiate with them. But that's the second big change. Negotiation will be supplanted by mandatory and binding arbitration. So once the union wins the election, the employer will be forced to immediately sit down with them because they'll just have 30 days to reach a contract and if a contract's not reached within those 30 days, A federal mediator will be appointed, and when I say that, I'm talking about a government employee is going to be appointed to be the moderator and mediate the further negotiations.

5:48So there'll be 90 days with the mediator wherein the parties will attempt to reach a contract and if no contract's reached, another federal arbitrator will be appointed that will have just omnipotent authority. They'll have authority to impose a contract on their own terms. They don't even have to start with the terms that the employer and union started to or began to reach. Let's say they had some agreement on some points but not others. The arbitrator won't have to start where the party's left off. He can just come in with a boilerplate collective bargaining agreement written by the service This Employees Union or whichever union it is and tell the employer, you know, I'm imposing these terms. So no negotiation, no right to refuse to enter into a contract.

6:37It will be mandatory within 90 days a contract will be imposed. And the last significant change is that there'll be make whole remedies available. Right now, you know, you have to post a sign saying, sorry, you know, I won't do it again. Now, under the current proposed legislation, there'll be monetary fines up to $20,000 only against the employer, by the way. The union is, it's a unilateral make whole provision. So you can see why I call it a fascist act, because the government allows you to believe that you own your business and that you control the terms and conditions between you and your employees. But they do this all the while they're removing the employer's right to deal directly with with their employees and decide what they'll be paid and what benefits they'll receive.

7:26And at the same time, they give the union complete carte blanche to their business. So it will destroy the private enterprise, if you ask me. So will it pass? I mean, this is the big question. We've been really afraid of this. I've spent untold weeks lecturing around the country, explaining to employees what it means. to employers, what it means, trying to get support to see that this bill is put where it belongs, which is in the trash can. But in the beginning, it looked like it was a shoe in. In the beginning, considering the fact that President Obama and Vice President Biden were two of the original sponsors of the legislation.

8:14And then when we watched President Obama being sworn in and on the dais, there's Michelle the Children, and Andy Stern, the president of the Service Employers Union. You know, at his inauguration we thought, okay, well it's over, it's a shoe-in, but frankly the only good thing that's come out of the fact that we were in this downturn economically is that the economy is too bad, I think even for Obama to support the passage of this legislation. So, you know, we see the election of Scott Brown in Massachusetts, and I think that this is really sending a new mandate to Obama. I think he's a little too afraid to grout on the stump for this right now.

8:59So you know, we think that there's probably enough fear out there in the legislators to that might prevent them from ringing the death knell, you know, for private enterprise. But we'll see. In the meantime, you know, we need to keep up the fight and we need to train good lawyers in the Austrian model so that they can understand right from wrong and go out and help us win the battle, so thank you.