National Clothesline

It is so much easier to take an extreme position when you have no power to act on it. The Employee Free Choice Act may be a victim of this rule of power and politics.

Before the election of Barack Obama, Democratic legislators favoring this pro-union amendment to the National Labor Relations Act could count on Republicans to filibuster it or President Bush to veto it. That is no longer the case.

Because Congress can pass the law, and President Obama has vowed to sign it, it is now within the power of those politicians to make it happen. For that reason, the Employee Free Choice Act may be in trouble.

While it is popular to bash business, regardless of political affiliation, business is what makes this country function. Politicians are now concerned that supporting labor on the extreme EFCA could result in businesses being hurt, and consequently, cause businesses to stop making political contributions to politicians who support it.

My concern, however, is not what Congress can do. My concern is related to all the vacancies on the federal courts that will be filled by Obama and approved by the new Congress.

For more than a year, Congress has blocked President Bush from making numerous appointments to the federal courts, and except for the Supreme Court, there are plenty of vacancies to be filled.

For example, the Fourth Circuit Court of Appeal, which has traditionally been a conservative court right below the Supreme Court covering cases in Maryland, North and South Carolina, Virginia, and West Virginia, has more vacancies than any court in the land. It is entirely possible that the Court — filled with Obama appointees — will become even more liberal than the Ninth Circuit, which is headquartered in San Francisco, and is the most reversed federal court in the country.

President Obama will undoubtedly appoint judges who are more inclined to favor employees over businesses. They will certainly be more likely to interpret laws more favorably to those employees than their employers. That’s because no matter how fair a judge thinks he or she is, he cannot help but bring his biases and prejudices to the job.

I have been a management labor lawyer for over 30 years. I see things from management’s perspective. I know that employer’s strive to keep good, hardworking employees regardless of their race, sex, age, and so forth, but there are plenty of lawyers who have spent years fighting management who believe, sincerely, that this is not the case. Those people will be appointed judges in 2009, not me.

President Obama will also appoint people to OSHA, the Department of Labor, the Environmental Protection Agency and other agencies who view themselves as pro-employee or pro-environment.

As a result, they will be less friendly to business, and their agencies will issue regulations that will make it more difficult to run your business and make a profit. Regulations can cause even more mischief than the statutes passed by Congress.

In other words, the people making the rules and the people interpreting them will not be the ones who ran businesses, borrowed money to keep their businesses afloat, or had to deal with employees in their pre-governmental careers who seemed committed to getting fired from the minute they were hired. Instead, they will be people who worked for government agencies, unions, or other organizations who believe the word “corporation” is evil and that businesspeople have no soul. It will be difficult for businesses to get a fair hearing because the biases and prejudices of those decision makers will not allow that to happen.

The most disturbing aspect of the last election to me was the demonization of business and successful people. If this attitude carries over to courts and agencies, we may long for the good old days when businesses were merely disliked.

It will become more critical in 2009 to hire only the best employees, and to monitor your employment practices, to insure that you stay out of court and avoid charges of discrimination. The climate will be less friendly, if it was ever really friendly at all. Even if no labor law is changed during the Obama administration, business may be in for rough times in labor and employment cases.