The herd immunity theory of unions

Immunization

When we think of herd immunity, we think of vaccinations.  Fewer parents are vaccinating their children nowadays because of their fears about negative reactions to vaccinations (including the now-debunked theory about vaccinations causing autism).  Those parents skipping vaccination point triumphantly to the fact that, despite their children’s vaccination-free status, there hasn’t been a huge upsurge in measles, mumps, rubella, polio, chickenpox, or any of the other diseases that can now be prevented with a shot or nasal mist.

What these parents fail to realize is that the diseases haven’t stopped simply because they’re rare; instead, they’re rare because other children are getting vaccinated.  Because there are a sufficient number of immunized children within a given population, these former childhood scourges cannot the necessary foothold to become endemic or epidemic.  It’s this perfect balance — where just enough kids are vaccinated to defeat a disease’s onslaught — that we call herd immunity.  This balance is also very tenuous.  If the number of vaccinated children drops below the magic herd immunity point, dangerous diseases come back in a hurry.

Accepting the unions’ premise that unionization is a good thing, one can apply the same argument.  The opposite of right-to-work laws is mandatory unionization.  That means that, if you want to work in a specific industry, whether as an electrician or a teacher, you must join the union.  The theory behind this is that unions are so good at ensuring that workers are well treated, that all workers benefit and all workers should therefore contribute to the union.  It wouldn’t be fair for some workers to pay dues, and then for all workers to benefit.

Just as with vaccinations, however, a lot of workers lately have been complaining about the side effects from the unions’ role in their industries.  These side effects include economic demands so parasitical that they kill the host and the unions’ habit of going far beyond their initial mandate, so that union members find their funds supporting political ideologies that are antithetical to their own beliefs.  In right-to-work states, these people are allowed to opt out.

The union screeches are because they believe that it is unfair for non-union members, in effect, to benefit from herd immunity.  They don’t have to suffer from the downside of unionization (i.e., paying dues), but they get the upside benefits (i.e., better employment conditions).

The thing is that unions are not vaccinations and working conditions are not diseases that can become epidemic or even pandemic.  Instead, there is a marketplace balance:  if too many people don’t join the union, breaking part the herd immunity, the marketplace will shift.  In that case, rather than inevitably getting worse as happens when a toxic disease breaks out, things might actually get better or they might get worse, or they might just get different.

Tradeoffs are not the same as a polio pandemic.  As Charles Krauthammer points out, union states have higher wages and lower employment; right-to-work states have lower wages and higher employment.  In other words, both systems have benefits and both have failings.  The employees ought to be able to determine which system they prefer at a given workplace.

Having the government impose mandatory union membership perverts the marketplace and prevents workers from making choices about the system that works best for them.  Certainly, given union threats and hysteria, one suspects that the unions are worried that they won’t be able to compete in a free market.  With increasing worker mobility and communication skills, we don’t have the stagnant local employment market that allowed 19th and early 20th century employers to abuse a trapped labor market.

Union thug hitting Steve Crowder

Both mandatory unions and mandatory professional organizations are antithetical to Constitutional Free Speech *UPDATED*

California Bar Seal

The State Bar of California, which I have to pay into in order to practice law in the State of California, long-ago abandoned its core responsibility of ensuring that people who hold themselves out as lawyers to California citizens are at least minimally qualified.  As with all these mandatory organizations, it’s turned into a political advocacy group and, again in sync with all these mandatory organizations, it advocates Left. That is, it forces me to pay money if I want to have a livelihood in my chosen profession, and spends that money on heavily politicized issues such as abortion.  (It hews so far Left that, even when I was a Democrat, I was offended by many of the political stands it took with my money.)

The State Bar isn’t the only professional organization that leans Left.  The American Bar Association is heavily political too in a Leftist kind of way. The difference between the ABA and the State Bar, though, is that the form is a voluntary organization. I was therefore able to cancel my membership when I realized that my money was being used to support political causes that were unrelated to law and with which I disagreed.  Sadly, I can’t opt out of the State Bar — not if I want to be a practicing lawyer, that is.

Looked at this way, I have the same lack of rights as union members who don’t live in in right-to-work states. Here’s the deal: if unions and bar associations limited themselves to their original function, which was to ensure that union workers have good conditions or that lawyers have reasonable qualifications, union dues and mandated bar memberships would be less of an issue. Unions and Bar associations, however, have drifted far afield from these core responsibilities.  They’ve branched out since the 1970s or so to become political action groups taking far Left stands on just about everything.

When states mandate that workers must join unions or that professionals must join professional associations, the state is effectively coercing citizens into funding speech with which they may disagree. Looked at this way, mandatory participation in activist unions and professional associations is a profound perversion of the First Amendment right to free speech. Free speech doesn’t just include the right to speak freely, it also includes the right to refrain from participating in speech with which one doesn’t agree.

All of this popped into my mind when I received an email from the president of the State Bar of California (emphasis mine):

Begging

By now, you should have already received your State Bar of California fee statement. Statements were sent out on Nov. 30, and many of you may be taking steps now to send your payments before the Feb. 1, 2013 deadline. If you have not yet received your statement, it may be helpful to know that you can sign in to My State Bar Profile to calculate and pay your 2013 fees.

As the president of the State Bar, I would like to take this moment to enlist your help with an important opportunity that you have through your annual dues.

As attorneys, other people’s problems challenge us to do our very best. We straighten out transactions gone awry. We resolve property and commercial disputes. We counsel our clients through criminal proceedings and personal difficulties and help with innumerable other problems that ordinary people have every day.

But there is a new challenge. Sadly, our economy has experienced an almost unprecedented downturn with interest rates at historic lows. It is the Interest on Lawyers’ Trust Account (IOLTA)* revenue that pays for civil legal assistance for indigent people statewide; and it is barely a quarter of what it was in 2008. There is no cushion left as we struggle to close the justice gap – the gap between the legal needs of the poor and the legal help we can provide for them. This is an unprecedented crisis for those we are charged with protecting.

But there is a powerful step each of us can take in seeking a solution to the justice gap. Your tax-deductible donation to the Justice Gap Fund (a component of the statewide Campaign for Justice) will expand access to justice for the millions of Californians with nowhere else to turn. The Justice Gap Fund is the only statewide vehicle to restore critical funding to nearly 100 legal nonprofits that serve our biggest cities as well as the most isolated rural communities.

A gift made at line 10 of your annual dues statement, or online anytime at www.CAforJustice.org, will make a real difference.

Please join me in the Campaign for Justice. Make a life-changing gift to the Justice Gap Fund – it will make a real difference to those who most need our help.

I have to say that my heart strings remain un-tugged.  The Leftist policies of coercive organizations such as the California Bar Association helped lead to a long, deep economic collapse and painfully drawn-out recession.  The Bar, with its speech amplified by coerced dues, managed to out-shout someone like me, who would have had more money if the Bar hadn’t taken it away.  If I could have been left to my own political speech, I might then have been more amenable to contributing to a fund that helps poor people entangled in the political system.  Because the fund is owned and managed by the same group of people who contributed to this mess, however, I’ll hang onto my money until I find more worthy charities.

UPDATE:  You have to check out Michael Ramirez’s perfect editorial cartoon, because it distills to a single picture the whole free speech (or non-free speech) argument I made above.

Unions ask “How dare an employer comply with the law?”

Kudos to Mi Pueblo, a grocery store that caters to Hispanic shoppers, for abiding by federal law.  At least, I give it kudos.  The Unions are fighting mad:

The Bay Area’s biggest Latino grocery chain is trying to avert a threatened boycott after it began checking the immigration status of all its new hires through a federal work-verification program.

“This is a decision that doesn’t come easily,” said spokeswoman Perla Rodriguez of the 21-store Mi Pueblo Foods chain. “The immigrant community, that’s the core of who we are.”

The company joined the E-Verify network a few weeks ago at the recommendation of the Department of Homeland Security, which uses the database to inform companies if their prospective employees are living and working in the country legally, Rodriguez said.

[snip]

A union that has been trying to organize the chain’s 3,300 workers is planning to protest Thursday morning outside the company’s original San Jose store and also threatening a customer boycott.

“I don’t see what the benefit is to them, as an employer or a PR-type thing,” to check the immigration status of the mostly Latino workforce, said spokesman Mike Henneberry of United Food and Commercial Workers Local 5. “It’s voluntary. They don’t have to do it.”

Maybe I’m terribly hampered by an excess of logic, but I do not understand Union support for illegal workers.  Every illegal worker takes a job away from a legal American worker.  In addition, because so many legal workers are paid under the table, they also exert downward pressure on wages.  As an American union member, I would be hacked off that my union dues are being used to benefit people who come here illegally to take my job.

Does the Wisconsin vote matter?

The American Future Fund put together a very funny video that shows Progressives before and after the Wisconsin election.  Before, defeat meant an imminent apocalypse; after, defeat meant . . . nothing:

You can’t blame the Progressives for their differing before and after statements. With the November 2012 election coming up, one could argue that circumstances forced them to take both positions.

But we here at the Bookworm Room aren’t Progressives, and we’re not trying to induce people to vote one way or another.  Perhaps, then, we can come to a consensus about the implications of Walker’s victory in Wisconsin.

I’m too lazy right now to hunt up links, so I’m going to make factual statements that I’m 99% certain are accurate.  You can accept them as true, or you can call me on my errors.  This also isn’t a carefully framed essay.  Instead, I’m just throwing out ideas.

1.  Here’s a fact I know for certain, because I was there when it happened: I heard a pro-Obama liberal say, “Oh, my God!  This is a disaster.”  When I asked why, she said, “Because I wanted Obama to win in November, and this means he won’t.”  The media and White House may be spinning, but at least one (wo)man on the street thinks that the Wisconsin election, rather than being an anomaly, is a harbinger of things to come.

2.  Many have commented on the disparity between exit polls and votes.  I’m not ready to draw a conclusion from those discrepancies.  Roger Simon suggests a Bradley effect, one that sees political ideology, not racial views, as the opinion people are trying to hide during face-to-face interviews.  If he’s right, the polls in this election season just became meaningless, and all bets are off for November.  DQ, however, had a good point, which is that, until we know how many absentee ballots were cast in Wisconsin, we can’t know how anomalous the poll results really were.  Here in Marin, for example, up to 60% of voters do so by absentee ballot.  With only 40% of voters showing up at the polling places, and the pollsters only catching a small fraction of those, there’s going to be a wide margin for error in any hypothetical exit polling.

3.  Some man-on-the-street interviews saw people saying, “I just don’t like the recall idea.”  Maybe that’s true.  Or maybe people are lying about their motives for voting conservative in order to hide their resurgent conservative identity.  In any event, a couple of interviews does not a statistical sample make.  What’s of some significance is the fact that Scott Walker is the only governor to survive a recall vote.  In other words, in other places and other elections, people weren’t so squeamish about kicking out a governor who was fighting a recall.

4.  Money matters — and I’m not talking about money spent on elections.  Scott Walker, in the short time available to him as governor, shifted the Wisconsin balance sheet away from a huge, even catastrophic deficit.  People who are not ideologues will vote for someone who is manifestly preserving their way of life, even if they’re voting outside of their normal party identification.

5.  The unions are in serious trouble.  It’s not just that they lost.  It’s that, when workers in Walker’s Wisconsin were given a choice to walk away from the unions, they did so — causing a 2/3 drop in union rolls.  This means that the unions are serving only the politicians and the union leaders.  The rank and file might have been getting good benefits, but they realized that good benefits are meaningless in a broke nation.  They opted for social stability, rather than being forced to turn over their money to a union that didn’t serve them well and that didn’t serve their community well.

6.  This is deeply damaging for Barack Obama.  Oh, I know that Wisconsin is just one state.  There might have been all sorts of unique Wisconsin factors at work here that, practically speaking, have no relationship to Obama and to the nation as a whole.  But this was a big Democrat push.  The unions, which are synonymous with Democrats, put their all into this.  The protests against Walker were tied closely to the Occupy movement which is, in turn, tied closely to the Democrats.  The two candidates took positions that perfectly represented the dividing lines of political thought in this country, with Walker being the principled, budget-cutting conservative, and Barrett promising the same old big-spending, pro-union Democrat governance that saw Wisconsin slowly go broke in the first place.  When the Democrat side lost, you could practically see the stench start rising from the corpse.  That stench is going to stick to Democrats nationwide and, naturally, it’s going to stick hardest to the top Democrat.  It’s not the nail in the Obama re-election coffin, but it’s certain equal to a handful of nails, and joins other painful moments, ranging from big failures, such as the dismal job reports, worldwide economic collapse, and the scary despotism of the Arab Spring that Obama helped usher in, to small failures, such as the dog wars, the mommy wars, the bullying wars, etc.  Obama is looking like a very weak horse indeed, and in unstable times, that’s the last person the voters want shepherding their nation.

Unions strike, people die

A few days ago, I warned people not to get sick starting on Thursday in Northern and Central California, because the California Nurses’ Association was staging a sympathy strike.  Sadly, one patient didn’t or couldn’t take my advice:

A female patient at an Oakland hospital died early Saturday due to what the hospital described as a “medical error” made while she was under the care of a replacement nurse hired during a labor dispute.

The nurse allegedly gave the woman a fatal dose of medication, said Cynthia Perkins, a spokeswoman for the Oakland Police Department. The nurse, who was not identified, was taken in for questioning by officers.

The unions are outraged, of course, that anyone is suggesting a connection between the patient’s death and the strike. What underlies the unions’ outrage is that the strike was only one for one day (Thursday) but the hospital had locked the nurses out through Tuesday. The union claims that this lockout was a punitive move aimed to stop future strikes:

“An incident like this is chilling and strikes right to our nurses’ concern about their ability to advocate for their patients,” said Rose Ann Demoro, executive director of the California Nurses Association-National Nurses United, which represents about 2,000 nurses at Alta Bates Summit Medical Center. “It was irresponsible to lock out those nurses.”

In fact, the lockout was the only way the hospitals could stop the financial hemorrhage from the strike. As I already explained in my earlier post, the only way that the hospitals could get staff for the single strike day was to fly in out-of-state people who refused to work for anything less than a five-day contract. The cost per strike breaker: $9,000. Thus, one economic cudgel behind the one day strike was to force the hospitals to pay outrageous fees for one day of service. The hospitals fought back the only possible way: they locked their own nurses out, so they wouldn’t have to pay their salaries, and instead paid the strike breakers’ salaries:

Sutter Health, the company that operates the medical center in Oakland, hired replacement nurses on five-day contracts and hospital officials said the nurses who went out on the one-day strike Thursday would be locked out until the temporary contracts expire Tuesday.

“Once a strike is called, it would be financially irresponsible for hospitals to pay double to compensate both permanent staff and replacement workers,” Sutter Health said in a statement last week.

So we’ve got the nurses’ union calling a one day strike, not on its own behalf, but out of union solidarity.  The union knows going in that

(a) hospitals cannot manage without any nursing staff;

(b) that substitute staff will only work for a five-day minimum and only for a $9,000 fee;

(c) that hospitals cannot possibly carry the economic weight of paying both striking nurses and substitute nurses for both the strike day and the four days after the strike day;

(d) that, while the hospitals can lock out and withhold pay from their own nurses, they cannot do so for the strike breakers; so that

(e) the only possible economic solution for the hospital is to keep the strike breakers and lock out the hospital’s own nurses.

The California Nurses Association engaged in economic blackmail and, predictably, someone died.

Californians: Do not get sick between Thursday and Saturday, because the unions are on the move

I’m surprised that there’s so little news about an upcoming nurses’ strike in Northern and Central California.  This story should be a big deal, in large part because the nurses who are going on strike in thirty-four Northern and Central California hospitals actually have no complaint.  Instead, they’re putting thousands of patients at risk because their union wants to show its sympathy to another union (emphasis mine):

Thousands of registered nurses plan to walk off the job at 34 hospitals in northern and central California on Thursday in one of the largest such labor actions here in years.

Up to 23,000 nurses could be involved in strikes at Children’s Hospital Oakland and the large Sutter Health and Kaiser Permanente systems, union leaders said.

[snip]

Kaiser nurses signed a contract earlier this year, but they plan a sympathy strike Thursday to support members of the National Union of Healthcare Workers, who will walk off the job at Kaiser facilities in a separate contract dispute.

Here in Marin County, there are three hospitals:  Kaiser in San Rafael, Sutter in Novato, and Marin General, which broke with Sutter a year or two back.  For up to three days, starting Thursday morning, there will be only one fully functional hospital in Marin, a county with more than 250,000 residents (emphasis mine):

Workers at all of the North Bay Kaiser facilities will be striking, but consolidated picket lines will be held in Santa Rosa, San Rafael and Vallejo, NUHW spokesman Leighton Woodhouse said. The strike would include about 220 workers across the North Bay, at facilities in Marin, Sonoma, Napa and Solano counties.

The California Nurses Association, with some 17,000 registered nurses at Kaiser facilities, will join the union as part of a sympathy strike, according to NUHW, which will amount to the largest strike in Kaiser’s history. Workers will walk off the job for one-, two- and three-day durations from September 21 to 23.

What’s just as bad is the way in which the hospitals, which cannot take the risk of patients dying because of the strike, will have to cope with the nursing deficit.  Kaiser, for example, is flying in strike-breakers, at a cost of $9,000 or so per strike-breaker.  The deal with these fly-in nurses is that they insist upon receiving a five-day contract, even though this strike is projected to last only one to three days.  While it would be impossible for Kaiser to have a replacement for each of the approximately 17,000 nurses on strike, the money Kaiser will be forced to pay out for this sympathy strike is outrageous.

Things are even more complicated than simply finding replacement nurses at incredible expense.  Most of the hospitals involved now have very complicated computer systems that are custom designed for each hospital chain.  These computer systems control everything:  nurse’s notes, doctor’s notes, pharmacy, lab tests, treatments, billing — you name it, it’s all computerized.  What these means is that hospitals are no longer fungible.  In the old days, a chart was a chart, and that was true whether you were in a hospital in Schenectady or San Francisco.  Nowadays, though, nurses have to understand computer systems that are unique to a given hospital.  That nurse who’s been flown in from out-of-state doesn’t know Kaiser’s or Sutter’s computer system.  For those nurses, it’s like having to fly a 747 when you’ve only flown a Piper before.

And again, let me remind you that the nurses aren’t walking off the job to improve their own working situation.  This is all about union solidarity.  So, my advice to you, if you live in the San Francisco Bay Area and the northern parts of Central California is to play it safe starting Thursday.  Even if your hospital isn’t one of the ones dealing with a strike, it might be feeling awfully overwhelmed.  If you were thinking of doing some DIY work with power tools, hold off a few days.  If you were planning on sending your kids to a park with lots of monkey bars, send them out to play on the lawn instead, or maybe just plunk them in front of the television.  For the latter part of this coming week, you can’t be too safe.

Isn’t it time you got yourself a copy of The Bookworm Turns : A Secret Conservative in Liberal Land, available for $2.99 through Amazon, Smashwords or iBook.

A couple of addendums

With regard to my post about public sector unions, this story about a very generous retirement pension is a good follow-up.

And with regard to my post about Obama screaming in hysteric anger after Netanyahu explained that Israel was not going to commit suicide at Obama’s behest, I realize that I forgot the pivotal sarcastic question:  Weren’t we assured during the run-up to the election that he was going to be “No Drama Obama”?  Looks like someone lied to us….

What happens when government (state or federal) is pathologically hostile to business

This post tells the story of a case on which I worked.  It’s a true story.

Picture this: It’s 2001.  You live in California and you own a small business that consists of you and maybe three to five at-will employees.  Your profits are decent.

One morning, Jane, one of your employees, announces that she’s quitting, effective immediately, and stalks out.  You know — or think you know — your California law, which requires that, when an employee quits, you have her payment ready within three days of her departure.  (That would be Calif. Lab. Code § 202.) You therefore immediately prepare Jane’s final paycheck, covering the two hours she worked before she quit.

One day goes by, but no Jane.  Two days, but still no Jane.  On the third day, you actually drive over to her last known address to drop off the check, only to discover it’s a vacant apartment.  You head back to the office, check still in hand.  Jane didn’t ask that you mail the check to her, nor do you have a current address, so for the time being, you just hold on to it.

On the fifth day after quitting, Jane shows up, grabs the paycheck, and again disappears.  You breath a sigh of relief, thinking you’re finally done with Jane.  If only you knew, the story is just beginning….

A month goes by, and you suddenly get a notice from the California Labor Commissioner telling you that Jane is claiming that you violated California law.  Your crime?  You did not get Jane’s final paycheck to her within three days of her quitting.  Since you had the paycheck ready immediately, and her failure to receive it was solely the result of her own unavailability, you laugh at this charge, thinking you’ve got a slam dunk case.

You show up on the assigned day to argue your case before the Labor Commissioner.  The Labor Commissioner announces that the three day rule means the employee must have the money in hand by the end of the third day — regardless of either your efforts to pay her or her lack of effort to receive the money.  To punish you, the Labor Commissioner imposes statutory sanctions (or “waiting time penalties”) against you, and insists that you pay Jane an amount 27 times greater than the wages she was actually owed.

Shocked by the unfairness of it all, you hire an attorney, who tells you that you’re right — you complied with your statutory duty, and the Labor Commissioner erred.  The attorney tells you that this is indeed a slam dunk case, and that you should appeal it, which means filing an original action in Superior Court.  Sounds good to you….

The case goes to trial.  Jane is represented by the Labor Commissioner, so this is a freebie for her — the people of the State of California, through their tax dollars, are paying Jane’s attorneys fees.  The judge appears confused by the issues and eventually announces what he believes is a Solomonic ruling.  He holds that, despite the statute’s clear language — Calif. Labor Code §  202 explicitly imposes on the employer only the burden of having payment ready, not the burden of ensuring that the employee receives payment — you should have gotten the payment directly to Jane.  However (and this is where the Solomon part comes in) the judge will halve the sanctions award against you.

While miffed at the fact that you couldn’t get the judge to agree with you entirely, you still leave the Court with a light heart — after all, you got the original award against you cut by 50%, which must be viewed as a clear victory.  Au contraire, my innocent California employer.

In 2001 — when these events took place — the attorneys fee statute governing appeals from Labor Commissioner awards imposed attorney fees and costs against a party who appeared before the Court and was “unsuccessful in the appeal.”  (That was Calif. Lab. Code § 98.2(c), repealed.)  However, as of 2001, two California decisions had held that this facially-neutral language didn’t really mean what it said.

Instead, said the two cases, what that facially neutral language really meant was that, if an employee appealed a Labor Commissioner award and bettered his position by even a penny, he was deemed successful on the appeal, so that the employer would have to pay the employee’s (or, really, the tax funded Labor Commissioner’s) attorneys fees.  The contrary, however, was not true.  If an employer appealed a Labor Commissioner award and bettered his position by 99.9999%, but not by 100%, he was deemed unsuccessful.  He therefore still got to pay the employee’s (or, rather, the Labor Commissioner’s) attorney fees.

What this meant for Jane’s employer was that, even though she managed to better her position on appeal by 50% — she still lost!  She still got to pay the Labor Commissioner’s attorneys fees at fair market value.

The situation in 2001 was therefore as follows:  No rational employer could take the risk of an appeal from a Labor Commissioner award, since there was a huge chance that the employer, whether entirely or even partially correct, would still end up with a judgment requiring him to pay something, even a nominal something, to the employee.  (Judges hate giving employees nothing.) If that happened on appeal, the employer will be responsible for the oh-so-costly attorneys fees, fees that were usually far in excess of the underlying wage dispute.

And when you stop and think about it, this perverted reading of a facially neutral statute was a green light to the Labor Commissioner to do some nasty stuff.  Begin with the fact that Labor Commissioner employees are generally unsympathetic to employers.  This non-intuitive, twisted, backwards reading of a facially neutral statute gave these employees an incentive to ratchet up sanctions against employers to ridiculous amounts, because the Labor Commissioner employees knew that the employer couldn’t afford an appeal.  Even if the employer prevailed on the appeal by lowering the sanction to a more reasonable amount, the employer would still be impossibly burdened by the Labor Commissioner’s attorneys fees.

Keep in mind, too, that these attorneys fees were a complete windfall for the Labor Commissioner, since Commission attorneys are automatically paid by the State of California for their efforts.  And last I heard, when they receive attorneys fees from some hapless employer, the Labor Commissioners offices are not refunding the taxpaying citizens in that amount.

Bad as the above-described situation sounds, it actually got worse after 2001.  There was a brief, shining moment in 2002/2003 when the California Supreme Court, in a burst of profound rationality, said that courts couldn’t take a facially neutral attorneys fee statute, and read it to impose disproportionate burdens on employers.  (That moment of common sense was brought to you by Smith v. Rae-Venter Law Group (2002) 29 Cal. 4th 345.)  That was too good to last, of course.

Here’s the “got worse” part:  In 2003, the California legislature announced its explicit intention to overturn Smith v. Rae-Venter.  The current version of the fee shifting statute now gouges the employer in no uncertain terms: “If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.”  (See Calif. Lab. Code §  98.2(c).)

There is now no possibility of another Smith v. Rae-Venter decision helping hapless employers.  The Legislature has declare in no uncertain terms that the employer can avoid paying the employee’s attorneys fees (read, “the Labor Commissioner’s fees”) only if the employer walks out of Court owing the employee nothing — and obtaining that outcome, especially in liberal courts in the Bay Area or L.A., is a pretty big risk for any small employer to take.  This means that employers simply have to swallow the cost when a greedy employee manages to get the ear of a Labor Commissioner who believes it’s fine to impose disproportionate sanctions against a hapless employer, so as as that sanction will benefit a “downtrodden” employee.

Why does this sad story matter?  It matters because this little bit of social engineering — unknown to most people — is driving business out of California.  I personally know of at least two businesses that have just packed up and moved to other states precisely to avoid these kind of hidden costs.  Those oh-so-clever judges misinterpreting the law before 2002, and the “compassionate” Legislature enacting unfair laws in 2003, all think their good intentions say it all.  They truly believe they’re insulating poor, downtrodden employees from the risk of attorneys fees.

What they’re not thinking about, though, is the fact that these employees will be even more downtrodden when businesses keep pulling out of California, leaving the State without enough jobs — and the government without enough taxpayers to run itself.

There’s a reason I’m telling this story today:  it’s because the problem I’ve described above is not limited to the state level.  The National Labor Relations Board has held that Boeing cannot build a plant in South Carolina:

In a stunning move well beyond the scope of their legal mandate, the Obama Administration appointee controlled National Labor Relations Board is suing Boeing Corporation for, get this, building a second production line for their new Dreamliner passenger plane in South Carolina rather than in Washington state.

[snip]

South Carolina is a right to work state whose voters this past November overwhelmingly amended their state’s constitution to ensure that a worker has the right to vote on whether they want to be represented by a labor union. The workers at the Boeing plant in South Carolina have also taken the bold step of booting out the union that represented them, effectively ending the International Association of Machinists and Aerospace Workers stranglehold on Boeing production.

Now, Obama’s NLRB is attacking Boeing’s job creation in South Carolina as “union retaliation” directly related to a 2008 labor strike which crippled Boeing’s production in Washington state.

Now that those state governments that are in thrall to unions and labor have made it virtually impossible to do business in State A, the federal government is upping the ante by making it illegal for a business to move to State B.  I’ll reiterate here what I often say:  The Left may call them corporate fat cats or “rich people,” but I call them employers.  When you make it impossible for them to do business, they’re going to leave.  And if you make it impossible to leave, they’re going to die on the vine, leaving both State A and State B without jobs.

Cross-posted at Right Wing News

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Teachers are, apparently, above reproach

A classic Seinfeld episode concerned George Costanza’s decision (at Kramer’s urging) to park in a handicapped zone.  This being George, things went drastically wrong.  What I remember from the episode, though, isn’t the cascading sequence of disasters; instead; it’s the opprobrium heaped upon George for parking in the blue.  His parking decision wasn’t treated as a misdemeanor, an illegal act, an inconvenience, or an act of selfishness.  It was treated as a moral wrong.  It was the equivalent of spitting on the altar.

That episode keeps cycling through my head, because the other day I too committed a moral crime.  I criticized teachers.  Yup.  One of my facebook friends fulminated about the fact that his daughter’s American history teacher was a vast reservoir of misinformation.  I agreed:  “Some teachers are really dreadful.”  That was my spitting on the altar moment.  I was told that I was condescending; I was told that teachers shouldn’t be scapegoated all the time; I was told that parents have a responsibility too; I was told that teaching is a noble profession; and I was told that there are bad lawyers out there, so I have no right to criticize teachers.

None of this personal invective altered two truths:  my friend was venting about an actual bad teacher, and I stated, perfectly correctly, that some teachers are really dreadful.  I heaped more coal on the fire by noting these two truths and by adding that, in a free market, one can criticize bad lawyers, getting rid of them, and leaving the field open for good lawyers to bloom and prosper.

Somehow, in the last few years, teachers have become above criticism.  This is separate from the fact that the pact between teacher’s unions and governments means that they can’t be fired.  In a logical universe, this pact, which cements bad teachers in place, would increase the rumble of criticism against teachers.  But at precisely the same time that tenured teachers became permanent fixtures, no matter their incompetence, Leftist societal morality also said “you cannot criticize teachers.”  This was not a coincidence.  It’s the only way to protect the public schools from perpetual parental outrage.

The funny thing is that, at bottom, I truly respect teachers.  Or more accurately, I respect good teachers.  Teacher is a challenging j0b, although it can be a rewarding one.  (The same is true for most other jobs, when done well.)  Teaching is not an overwhelmingly profitable job, but it can provide a decent lower to middle class lifestyle.  (The same is true for most other jobs, when done well.)  Teaching requires a certain amount of training and education.  (The same is true for myriad other jobs.)  You get my point — teaching is a job.  It requires training and hard work.  Some days are boring, some fulfilling.  The income is okay, although you’ll never get rich.

But only teachers, if they put in the time, cannot get fired and, apparently, only teachers cannot get criticized.  Theirs is a job like everyone else’s — only different.

If I was a good teacher — and there are so many good teachers out there — I’d be hacked off at this situation.  Permanent employment is nice, but the accompanying degradation of ones professional is less nice.  The fact that one is not allowed to say evil of teachers doesn’t mean one isn’t thinking evil.  Moreover, the fact that people cannot criticize teachers (or, as I’ve discovered as a parent, oust the bad ones from the classroom), means that the teaching profession is denied the opportunity to cull out deadwood and correct mistakes.  Teachers are like a garden run wild, with the healthy plants dying as the weeds and poison ivy take over.

As an honest black person  in Britain said, this type of “positive discrimination” is as damaging as the old kind of negative discrimination once was.  It tarnishes the brand, whether the brand is race, color, creed, sexual orientation, or teaching certificate.

You get what you pay for with city government

One of my “crossing the Rubicon” moments came upon me about twenty years ago, when I went to the main branch of the old San Francisco public library (before it moved to its snazzy, very expensive new digs), and tried to check out a book.  I found myself standing in a line of about 60 people, all waiting to check out their books.

Standing on tip-toe (remember, I’m short), I was able to see that there were three active stations, each with a library employee checking out the books.  Considering that checking out books isn’t “rocket surgery,” I was at a loss to figure out why it was taking so long.  I discovered the problem when I got to the head of the line:  the clerks weren’t trying very hard.  To be honest, they weren’t trying at all.  Watching molasses drip on a cold day would be a more scintillating experience than watching these public servants processing the public.  To add insult to injury, they were rude too.

I walked out thinking this to myself:  “I doubt anyone of those clerks is paid more than about $28,000 per year, plus benefits.  That’s $84,000 cash per year, not including the benefits.  Why don’t they just hire one good person for $50,000 (plus benefits, of course), and get the job done right at a savings to the City of $34,000 per year, plus two unused benefits packages?  But of course, that couldn’t happen.  The unions would never go for it.  Their goal is to have as many employees as possible who, once they get their jobs, can never be fired, no matter how shoddy their work.  This isn’t about serving San Franciscans, this is about maximum employment for union members.”

I walked out of that library much more conservative than when I walked into that library.

This memory came back to me courtesy of an Instapundit post (hat tip:  Earl):

MORE ON THOSE UNDERFUNDED / OVERGENEROUS PUBLIC PENSIONS: Report: SF Pension Crisis Much Worse than City Claims: Adachi-commissioned analysis puts gap at $6.8 billion–not official figure of $1.6 billion. “The city’s pension fund is officially underfunded by $1.6 billion. Nation’s study argues that the pension fund is relying on a 7.75 percent annual rate of return that is unrealistic over the long term. The study argues for 6.2 percent, which it says was the average rate of return in the capital markets from 1900 through 1999.” Frankly, that “conservative” number looks overoptimistic to me. 4% is probably more realistic.