Creating Ignorance of the Law

paperworkOne of the worst ideas that the Obama administration has proposed, making it harder for employers to obtain legal advice, is apparently moving forward. On Dec. 7, the U.S. Department of Labor submitted a draft final regulation to the White House for review which would do exactly that, assuming that the draft contains the provisions found in the proposed rule.

In the midst of a union campaign to unionize an employer, many engage attorneys and other consultants to help guide them through the process. The need for this is obvious. Labor law is voluminous and complex. For example, just one part of the Casehandling Manual from the National Labor Relations Board, ”Part Two,” dealing with proceedings in issues surrounding unionization elections is 332 pages long. All but the largest employers will have a high degree of difficulty in understanding everything that is contained in these 332 pages and the pages of other manuals, regulations, and case law without engaging counsel. Employers who attempt go to through these situations without engaging counsel often find themselves on the receiving end of an unfair labor practice charge. These can easily happen because most employers are unlikely to know all the ways that they can unintentionally commit a supposed unfair labor practice, such as making a promise to increase wages or actually increasing wages during a unionization campaign.

Among other things, the proposed regulation would require attorneys to publicly disclose the clients that obtain the kind of services discussed above, and the payments received from these clients. The proposed regulation would put attorneys in the intolerable position where they would have to choose whether to violate their duty to protect client confidences and secrets, or to report these to a federal agency. That the Obama Administration has even considered encroaching on this relationship should scare everyone — but they’ve gone further in actually proposing a regulation on this point. Breaching the confidentiality of the attorney-client relationship means that fewer employers will seek advice from attorneys and fewer attorneys will be willing to give advice in this area because all their labor relations clients will be revealed in a federal filing.

Ted Cruz 2016


The administration, of course, knows all this, and is clearly working to favor unions. Couple the Labor Department’s proposed regulation with the newly promulgated election procedures regulations from the National Labor Relations Board and the result is clear: employers get less time to respond to a unionization campaign and have increased difficulty in obtaining counsel to help them through this process.

As if this was not bad enough, it is not just employers who are in the crosshairs of a union that have to be concerned about the proposed regulation. In some situations a contract intern who “Googles” to get information for an employer about a union could be required to file a federal disclosure report. In some instances, printing copies of union information directly from the Labor Department’s website and disseminating that information could require the filing of a federal report.

The Obama administration should not create barriers for employers to know how to comply with the law. They should also not create potential regulatory traps. This, however, is exactly what they have proposed to do. The proposed rule was a bad idea from the start. That the administration put the proposal on the back burner for more than four years and are only now moving ahead with it now that they have no more elections to run shows that they worried about its electoral consequences as well. The proposed regulation should be summarily dumped into the bin of bad ideas and never brought up again.

Woodrow Wilcox


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Nathan Mehrens is president of Americans for Limited Government Foundation. He previously served as ALG’s General Counsel. Before that he was Special Assistant to the Deputy Assistant Secretary of Labor. He previously served as Director of Research and General Counsel for several non-profit organizations that monitor and advocate on labor union issues.
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  • kernals

    What is this country coming to when employers can’t hire lawyers to sit behind closed doors and run union busting campaigns?

    • Bob Ellis

      I think you mean, “What is this country coming to when employers can’t hire lawyers with their own money to sit behind the doors they paid for and defend themselves against government-forced unionism that interferes with their property rights under what was once a free market system of limited government?”

      • kernals

        “free market system of limited government?”

        A dogwhistle for child labor, 60 hour work weeks, and sweatshops.

        • Bob Ellis

          “A dogwhistle for child labor, 60 hour work weeks, and sweatshops.”

          A dog whistle for unconstitutional, anti-American Marxism.

          • kernals

            Which is ironic since most Americans agree with me.

            • Bob Ellis

              Even if they did (which they don’t, with 82% of Americans condemning forced-unionism, and union membership at historic lows despite our Leftist government’s favoritism toward it), opinion does not trump law, and the highest law of the land (the U.S. Constitution) does not permit the federal government to interfere in the labor decisions of private businesses. It’s a freedom and property rights thing that Leftists just can’t bring themselves to understand.

              • kernals

                Yes, because these property rights violate the human rights of workers. And as for Americans agreeing with me, 58% have positive views of organized labor, and I’m sure they support 40 hour work weeks, bans on child labor, and safe workplaces.

              • Bob Ellis

                No, the right to run your own business (the business that you put up the capital for, took the risk for, and put in all the extra hours for) does not violate anyone’s human rights.

                In a free society, a worker is completely and totally free to work for an employer they believe is compensating them fairly for their labor rendered…and completely free to market their labor somewhere else if that employer is not willing to offer what they consider fair compensation.

                In a free society, that’s how stuff works. People aren’t forced into associations they don’t want to be in, and property owners aren’t forced by their own government to surrender more of their property to another citizen than they are willing to. You really should give the American way some serious consideration. It produced the most free and affluent society in human history, whereas the Marxist oppression you seem so in love with has produced nothing but suffering and oppression where ever it’s tried.

                Unlike the oppressive society you seek, in a limited government free market society, employers are free to operate their property (their business) the way they see fit, and suffer either the positive or negative consequences for those actions,. In a limited government free market society, laborers are free to render their labor to any employer willing to accept that labor for an agreeable exchange rate, just as they are free to negotiate with that employer for greater compensation, or take their labor somewhere else if the employer is not willing to compensate them as they desire.

                That’s how things are in a free society. There are still a few Marxist hellholes lingering on in the world (e.g. Cuba, North Korea, Vietnam, etc.) that would better suit your oppressive, anti-American proclivities. You should move to one of those utopias and leave freedom-loving Americans in peace.

              • kernals

                Those countries have no unions, you would be a better fit for them.

              • kernals

                So 1950s America was a Marxist hellhole? And what about Sweden, Germany and Canada? Your utopia with no government is hell to everyone else.

              • Bob Ellis

                This must be the first time I’ve ever seen a Leftist laud 1950s America. No, thankfully, there was still enough counterbalance in American society in the 1950s that Marxist incursions into labor law and some other business areas were largely restrained. The infiltration of Marxism was relatively narrow back then, and most Americans were still smart enough in most areas to prevent the full fury of Marxist corrosion from doing the damage it does when unrestrained.

                And to be clear, neither I nor any conservative has called for “no government.” Don’t confuse conservatives with libertarians or anarchists. As I have already said a number of times now, conservatives believe in the founding American principle of limited government, the cornerstone of the U.S. Constitution and the American way. Read Article 1 Section 8 of the U.S. Constitution where the powers delegated to the federal government are enumerated. You will not find authority there for the federal government to meddle in the internal affairs of private businesses. You will also find these limits on federal power reinforced by the Tenth Amendment to the U.S. Constitution which says:

                The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

                This makes it clear that if a power is not delegated to the federal government by the Constitution (and you can find those powers enumerated in Article 1 Section 8), then it is not lawful for the federal government to act in that capacity.

                Finally, if this were not clear enough, “Father of the Constitution” James Madison elaborated in Federalist No. 45 as he explained the new constitution to those who would be considering it for ratification:

                The powers delegated by the Constitution to the federal government are few and defined. Those which are to remain in state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.

                Again, please consider giving the American way a try. Since your IP says you live in the United States and enjoy the fruits of the system of limited government that our founders set up, and since we require that naturalized citizens swear an oath to support and defend the U.S Constitution as well as bear true faith and allegiance to the same, that’s the least you can do.

              • kernals

                Our labor laws were no different in the 1950s. And union membership was much higher.

              • Bob Ellis

                Yes, like any new thing that promises free stuff, people were more naively infatuated with getting more than they previously had.

                Since then, people have had an opportunity to see several decades of union corruption on parade, as well as experience things like forking over part of their ill-gotten wages to union thugs, and seeing the long-term effects of short-term illegitimate benefits.

                Good people in many of the states, too, have been fighting back against forced unionism with “right to work” laws that protect people and businesses from union thuggery.

                Sooner or later, when the “shiny” and “new” wears off the promises of the Left, people realize they’re being taken for a ride and walk away from “the workers paradise.” Even Soviet citizens said “enough” after 70 years of socialist utopia.

                Again, please read the constitution and our founding principles, and consider bearing true faith and allegiance to the same. If you can’t, I’m sure Cuba or North Korea would welcome another worker like you with open arms.

              • kernals

                Union membership would be a lot higher without the dirty union busting campaign this new regulation would expose

              • Bob Ellis

                Can’t see it, especially the way the federal government has stacked the deck overwhelmingly in favor of the union thugs for decades.

              • kernals

                If you believe that, you’re living under a rock. Employers are allowed to force workers into captive audience meetings and the penalties for firing union supporters are so low that employers find it cheaper to do that rather than deal with a union.

              • Bob Ellis

                I don’t just believe it, I know it, having studied history fairly extensively.

                If you’re a worker and you’re being paid to sit and listen to a presentation at a meeting, what’s that to you? You’re getting paid the same. And if you don’t like it, in a free country, you can always walk down the road and seek a job where that isn’t part of the agreement.

                Why should either party be FORCED into a relationship that either does not want? Why are you so anti-freedom?

              • kernals

                “If you’re a worker and you’re being paid to sit and listen to a presentation at a meeting, what’s that to you?”

                The problem is unions can’t do the same thing so employers get a lot more time to make their case than the union does.

              • Bob Ellis

                The union didn’t start the company, the union didn’t put up the capital to create the company, the union doesn’t own the company. The owner(s) do that.

                You seem to think that people who do not own a particular piece of property should have some sort of say in how that property is used. Do you realize that this is a thoroughly Marxist and completely anti-American idea?

              • kernals

                “Do you realize that this is a thoroughly Marxist and completely anti-American idea?”
                Do I get bonus points if I act like I care?
                -Dr. House

              • Bob Ellis

                No, and since you have proven beyond any shadow of a doubt that (a) loathe the U.S. Constitution and the American way of life, and (b) are unwilling to adjust your opinion to reality, then you are done here.

              • kernals

                So if they have, why do so many have positive views of unions?

              • Bob Ellis

                For the same reason most Americans poll positively toward liberal issues in many polls, yet live largely in a conservative manner. Because there are so many slanted polls, and because people generally feel inclined to “give the right answer” when a member of the elite asks their opinion, and the intelligentsia have spent decades telling the American people that being pro-union is “the right answer.”

                Sadly, most people lack the guts to go against the grain of the “professionals” when asked in a poll, but when given a choice in everyday life, they usually trend conservative. I suppose I’d rather have them behave gutlessly around pollsters and correctly in real life than the other way around.

                But you should still take the time to study the U.S. Constitution, then give serious thought to bearing true faith and allegiance to it.

              • kernals

                So explain Donald Trump’s popularity

              • Bob Ellis

                Explaining the Trump phenomenon is very complicated and off-topic, so I’m not going to get into it here.

                How about that Constitution, thing, though? Any interest in obeying it? Or is lawlessness just your bag?

              • kernals

                The constitution says the government is allowed to regulate interstate commerce. And these days, all commerce has the potential to be interstate commerce.

              • Bob Ellis

                I wondered how long it would take you to attempt the typical Leftist perversion of the Commerce Clause.

                Your argument sounds rather like the argument made the first time the free market was successfully subverted by a socialist president who argued that growing something for your own use somehow triggered the interstate commerce clause of the U.S. Constitution because growing your own stuff would mean you didn’t buy someone else’s stuff. That’s what rational people call a BS excuse for tyranny.

                Those who wrote the U.S. Constitution and founded this nation didn’t go in for such thin excuses for tyranny.

                We must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government. – James Jackson, First Congress

                Our tenet ever was…that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money. – Thomas Jefferson

                Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated. – Thomas Jefferson

                With respect to the two words ‘ general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. – James Madison

                Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction. – Thomas Jefferson

                The powers delegated by the proposed Constitution to the federal government are few and defined . . . to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” – James Madison

                I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition. – Thomas Jefferson

                A wise and frugal government … shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government. – Thomas Jefferson

                The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet’ and `Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free. – John Adams, A Defense of the American Constitutions 1787

                Yours is clearly an anti-American, unconstitutional position. Would you care to adjust your thinking to the U.S. Constitution and the American way or is Marxist tyranny and lawlessness the only thing you’re interested in pursuing?

              • kernals

                I see you selectively choose a few founding fathers, what people like you don’t understand is that the founders were diverse in their ideas, Alexander Hamilton was for centralized government.

              • Bob Ellis

                Hamilton wanted a stronger central government than some of the founders, but it is an outright Leftist lie to imply that he wanted anything remotely similar to the tyranny embraced by American Leftists today.

                If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. – Alexander Hamilton, Federalist No. 33

                No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. – Alexander Hamilton, Federalist No. 78

                Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every break of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country. – Alexander Hamilton, Federalist No. 25, 1787

                The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election… They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided – Alexander Hamilton, Federalist No. 9, 1787

                The present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes – rejecting all changes but through the channel itself provides for amendments. – Alexander Hamilton, letter to James Bayard April, 1802

                The Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of convention, but from the general theory of a limited Constitution. – Alexander Hamilton, Federalist No. 81, 1788

                Not even remotely similar to the kind of all-powerful, constitutionally-contemptuous position of a modern Leftist.

                And your Leftist propaganda here is done.

              • kernals

                “Your argument sounds rather like the argument made the first time the free market was successfully subverted by a socialist president who argued that growing something for your own use somehow triggered the interstate commerce clause of the U.S. Constitution because growing your own stuff would mean you didn’t buy someone else’s stuff. That’s what rational people call a BS excuse for tyranny.”

                It’s a BS excuse that means children don’t work in factories, car accidents are survivable, and rivers don’t catch fire.

              • Thisoldspouse

                What are “human rights?” Are there other kinds of rights?

              • Bob Ellis

                There are animal rights. There are plant rights. (in the minds of Leftists, anyway).

              • Thisoldspouse

                Well, we know that a virus (neither plant nor animal) has rights. HIV/AIDS is the first disease that has been granted rights.

        • Thisoldspouse

          Slavery is illegal. Or haven’t you gotten the memo yet that the Civil War (of 1865) is over?

      • DCM7

        Knowing what I do about unions, it’s almost surreal seeing someone attempt to defend them.

        • Bob Ellis

          Ayup. And to see it done so vociferously from a fully Marxist position is nothing short of sad.

  • Thisoldspouse

    Unions are simply Marxist government under cover, doing what Marxists have been wanting to do for a very long time.