Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

Mark Wilson, former Deputy Assistant Secretary for Employment Standards Administration of the U.S. Department of Labor, has written a “Policy Memorandum” for the HR Policy Association in which he disputes the claims made in this week’s advertisement by the pro-union Economic Policy Institute that increasing unionization rates would strengthen the middle class. Mr. Wilson takes issue with EPI’s assertion that between 2000 and 2007, “virtually all of the nation’s economic growth went to a small number of wealthy Americans.”  The Policy Memorandum points out that according to U.S. Census Bureau:

• The share of income going to the broadest measure of middle-class households (the middle 60 percent) increased from 46.7 percent to 46.9 percent, while the share going to the very middle (20 percent of all households) remained the same (14.8 percent).

• The share of income going to the broadest measure of middle-class families increased from 47.9 percent to 48.6 percent, while the share going to the very middle increased from 15.4 percent to 15.6 percent – while the private-sector unionization rate declined from 9.8 percent to 8.2 percent.

In a scathing article attacking EFCA opponents of all stripes, Art Levine of The Huffington Post suggests that Mr. Wilson had “somehow cherry-picked” those statistics.

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As we reported yesterday, Rep. John Kilne (R-MN) and Sen. Jim DeMint (R-SC) introduced the Secret Ballot Protection Act in the House and Senate.  The text of the House version, H.R. 1176, is now available at GovTrack.us and Thomas.gov.  The introduction to the bill reads:

Congress finds that--

 

(1) the right of employees under the National Labor Relations Act to choose whether to be represented by a labor organization by way of secret ballot election conducted by the National Labor Relations Board is among the most important protections afforded under Federal labor law;

 

(2) the right of employees to choose by secret ballot is the only method that ensures a choice free of coercion, intimidation, irregularity, or illegality; and

 

(3) the recognition of a labor organization by using a private agreement, rather than a secret ballot election overseen by the National Labor Relations Board, threatens the freedom of employees to choose whether to be represented by a labor organization, and severely limits the ability of the National Labor Relations Board to ensure the protection of workers.

The bill further amends the National Labor Relations Act to make it an Unfair Labor Practice (ULP):

...to cause or attempt to cause an employer to recognize or bargain collectively with a representative of a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9.

More coverage:

• Statement of Rep. John Boehner (R-OH)
• "Fight Over Union Organizing Legislation Heats Up a Bit" -- WSJ.com Washington Wire 
• "Fighting the Card Check Bill" -- Human Events Online
• "GOP Introduces Bill Mandating Secret Ballot Union Elections" -- Workforce Management
• "Card Check: 'Who's Really Lying?'" -- ShopFloor.org
• "Beware of the Big Lie Bill" -- AFL-CIO blog

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Last week, we reported on numerous efforts underway to create state-level obstacles to federal card-check legislation.  On the other side of the issue, yesterday's Pacific Business News reports that a Hawaiian Senate Committee has approved a state version of EFCA:

The controversial union card-check measure, which would allow Hawaii labor unions to more easily organize workers by having them sign authorization cards, is gaining ground having cleared its initial committee hearings in the state Senate.

The Senate Committee on Judiciary and Government Operations on Thursday passed Senate Bill 1621, which essentially removes the use of traditional secret-ballot elections by allowing employees to sign cards indicating they’d like to organize under a labor union. If a majority of a company’s workers sign the cards, the union is automatically recognized and free to bargain with management.

The measure also mandates binding arbitration in collective bargaining and removes private-property rights for business owners if the unions want to picket on sidewalks and near entry ways of their establishments. It also establishes legal immunity for unions in actions relating to collective bargaining.

An initial read of the bill indicates that the Hawaiian EFCA is identical in some respects to the federal bill, but includes more drastic measures as well.  A similar bill passed the Hawaiian legislature last year, but was vetoed by Gov. Linda Lingle (R).

It should be interesting to see whether additional states -- similarly viewed as union-friendly -- introduce or pass similar legislation during the next few months.  It may be that long before EFCA is re-introduced in Congress, we have seen numerous related debates play out regarding state opposition measures, state mini-EFCA's and the Secret Ballot Protection Act (H.R. 1176, S. 478).

More information:

• Hawaii Hotel & Lodging Association's Testimony on House Version of Card-Check Bill
• Hawaii Senate Standing Committee Report on SB 1621

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Yesterday, Republican members of the U.S. House and Senate introduced the Secret Ballot Protection Act into the 111^th Congress. While the full text is not yet available, prior versions of this bill would have made it unlawful for an employer to recognize or bargain with a union unless a majority of employees had voted for union representation in an NLRB-conducted secret ballot election. 

The bill (H.R. 1176) was introduced in the House of Representative by Rep. John Kline (R-MN) and 103 co-sponsors. Sen. Jim DeMint (R-SC) introduced the Senate version (S. 478) with 18 co-sponsors.

Neither chamber is likely to bring the measure up for committee hearing. However, during debate over the Employee Free Choice Act in 2007, the House Rules Committee allowed members to vote on whether to substitute the Secret Ballot Protection Act for EFCA. That proposed amendment failed by a vote of 173-256.

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In an interview yesterday with USA Today’s Susan Page, SEIU President Andy Stern, said that he was “extremely hopeful” that Congress will take up the Employee Free Choice Act before the August recess. 

Mr. Stern also asserted that there are 60 Senators who will vote to end any Senate filibuster. Katie Packer, Executive Director of the Workforce Fairness Institute said she doubted the claim and called on Mr. Stern to name the “SEIU 60.”

One interesting quote from Mr. Stern’s interview: “The free market has not worked to end inequality.”

Watch the video: 

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Today's Washington Post contains a full-page ad placed by the Economic Policy Institute -- a pro-union economic policy think-tank.   The ad features a statement signed by thirty-nine economists advocating for the passage of the Employee Free Choice Act.

Unfortunately, the ad is poorly titled: "Prominent Economists Say: Passage of the Employee Free Choice Act is critical to rebuilding our economy and strengthening our democracy."   Instead of explaining from an expert economist's perspective precisely how EFCA would help "rebuild...our economy," however, the statement launches into the same flawed pro-EFCA talking points heard over and over again:  most workers want unions, management fiercely opposes unionization, management violates the law, management "routinely" fires organizers, management resists contract negotiations, etc.

The ongoing debate over EFCA suffers from the subsitution of this kind of politically-motivated chatter for more reasoned, objective contributions.  Leading economists ought to be more involved in the discussion -- but they ought to be contributing economic expertise.  Tell us exactly how EFCA will help or hurt our economy. 

Lawrence Mishel -- head of EPI, and an author of this statement -- is certainly capable of doing so as he has written extensively on the issue in the past.  In 2007, he testified before a Senate H.E.L.P. committee hearing on EFCA.  In the introduction to his remarks, he included a laundry list of accomplishments for which he credited unions  Mr. Mishel displayed obvious pro-union sentiment, suggesting unions were responsible for helping to defeat Communism, to overthrow Apartheid, to house the first Continental Congress, to champion the Civil Rights movement and to pass every single piece of statutory employment protection.  But thereafter, sentiment notwithstanding, he engaged in a thoughtful policy discussion arguing that union representation provided social and economic benefits -- including enhancing competitiveness.   

It is a shame that in spending a considerable amount of money on a full-page newspaper ad, instead of bringing such additional insight to the table, EPI chose rather to repeat the same tired saws one might expect from special interests.

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The Senate voted yesterday to confirm Rep. Hilda Solis (D-El Monte, CA) as Secretary of Labor.  The vote was 80-17.  All fifty-eight (58) Democrats and Independents casting ballots voted yes (with Sens. Harkin and Kennedy not present). 

Today marks Secretary Solis' first day on the new job.  Per the Associated Press:

Her background as a fierce advocate for organized labor makes her a favorite of union leaders eager to wield more clout after years on the sidelines. She is the daughter of immigrants — her father was a Teamsters shop steward in Mexico while her mother, a native of Nicaragua, worked on an assembly line and was a union member.

Solis has pledged to increase oversight of wage-and-hour laws, worker health and safety regulations and rules covering overtime pay and pay discrimination.

"For Secretary Solis, this is not just another job, but the culmination of a lifetime of action serving as a voice for people who work," said Andy Stern, president of the Service Employees International Union.

AFL-CIO president John Sweeney called her confirmation "a huge victory" and said Solis would represent "working people, not wealthy CEOs."

More coverage:

• "The Scene in the Chamber: Unlikely Hugs and Surprising Applause" -- TPM
• "New Boon to Obama's Economic Plan: Solis Confirmed as Secretary of Labor" -- Huffington Post
• "Hilda Solis is the New U.S. Secretary of Labor" -- Hispanic Business

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MSNBC reports this morning:

*** Remember that Solis confirmation? [NBC reporter Ken] Strickland also notes that while it seems apparent to Senate Democrats that Hilda Solis will eventually be confirmed as Obama’s Labor secretary, Republicans are making Majority Leader Harry Reid jump through hoops to get her there. This morning, Solis' nomination will face a procedural vote on the Senate floor that neither Eric Holder nor Timothy Geithner faced in their somewhat bumpy rides to confirmation. This vote will happen immediately following the one on DC voting rights. Strick adds that Republicans are forcing Reid to muster 60 votes to advance the nomination because of her ties to a pro-labor lobbying group, as well as her support for the contentious Employee Free Choice Act. Reid's office is optimistic that the majority leader will be able to reach an agreement with Republicans for Solis to have her final confirmation vote before week's end, possibly as early as this afternoon.
 

Many supporters on the political left, not to mention organized labor, have criticized the Senate's reluctance to confirm Rep. Solis as evidence of anti-union and anti-EFCA sentiment.  On the other hand, some defend further deliberation on account of Rep. Solis' refusal to comment on anything in her January 9, 2009 Senate Committee hearing, including her position on EFCA -- a bill she co-sponsored in 2007 and lobbied for as a member of the Board of American Rights at Work.  One of Rep. Solis' only public statements about EFCA -- featured on her House of Representatives webpage -- might well have been cause for concern, as it suggested a significant misunderstanding about the bill itself.  

The initial cloture vote is expected around 11:00 a.m. today. 

UPDATE (1:00 p.m.):  The Washington Post reports that Senate Republicans have assured Democrats that they will not filibuster the issue, and that the actual confirmation may come up for a vote as early as this evening.

Additional coverage:

• "Senate to Hold Crucial Cloture Vote on Labor-Secretary Designee Hilda Solis" -- AHN
• "Big Labor's Girl" -- Human Events Online
• "Senate to Take Test Vote on Solis" -- Pasadena Star-News
• "It is Time to Confirm Hilda Solis" -- The Nation

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Yesterday's DC Examiner declared the "Union bill a mine field."  Wondering if six weeks until Spring Recess is enough time to introduce what was once declared a top priority of the Democratic Congress, the piece notes:

... the legislation, which would make it easier for unions to organize workplaces, has turned into a political minefield for the Democrats who, despite wide majorities in both chambers, have pushed action on the legislation into the summer to avoid what one blogger called “the mother of all labor brawls.”

At Slate, EFCA critic Mickey Kaus "Generalizes Wildly from Fragmentary Personal Experience," however astutely.  His conclusion:

Intimidation isn't required for the results of a public ballot to diverge from a secret ballot (and from the true choice of the voters). All that's required is a desire not to tell your pro-union buddy to his face that you think he's wrong. ...

NAM's President John Engler told reporters yesterday:

We think this is the single most destructive thing you can do to the competitiveness in the country. And the idea that 7.5 percent of the private sector workforce that is unionized that those unions should be able to take over the other 93 percent of the workforce through the side doors is worthy of very extended debate in Congress and very careful deliberation. It shouldn’t just be reported as a political payback; labor wins the election labor gets to have this. The consequences of having arbitrators do work rules is very ominous for our competitiveness.

And at National Review Online, Mallory Factor declared EFCA "The Ultimate Anti-Stimulus Plan":

Monopoly bargaining violates employees’ freedom and is therefore in itself bad policy. But for Congress and the Obama administration to help Big Labor foist monopoly bargaining on millions more workers now, as the national economy reels from the combined impact of the housing and stock-market crashes, would be fatal to our hopes of timely recovery. And we can expect that the increase in unions’ power and numbers will impair U.S. competitiveness for generations to come.

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Last week, we noted the recent introduction of a resolution in Florida to amend the state's Constitution to guarantee the use of secret ballots in the designation of a union representative by employees.  A number of other states have, to date, introduced similar measures -- and one has already passed it.

A quick jaunt around the web reveals the introduction of resolutions seeking to preclude the card-check scheme envisioned by EFCA:  SJR25 in Alabama; Senate Resolution 108 in Georgia; Senate Resolution 1828 in Kansas; Legislative Resolution 10 in Nebraska; House Resolution 3305 in South Carolina; House Joint Resolution 008 in Utah; and Senate Joint Resolution 8214 in Washington.   Some of these resolutions seek to pass State Constitutional amendments, others call for the state's federal legislators to oppose EFCA when re-introduced later this year.

As we indicated in our earlier post, proponents of some of these state measures will ultimately need to establish that federal preemption should not preclude these state efforts to regulate labor issues.  Save Our Secret Ballot, an organization supporting some of these resolutions, asserts at its website:

Although the National Labor Relations Act generally pre-empts state laws, the US Supreme Court has ruled that state law may prevail if it safeguards important interests and does not disrupt the federal regulatory scheme. The US Supreme Court has recognized the right to vote by secret ballot and freedom of association as important interests.

 Professor Jeff Hirsch of Workplace Prof Blog is not convinced:

The NLRB's jurisdiction over representational issues in the private sector is given more deference than anything else the Board does, and NLRA preemption clearly applies.  But the initiative is obviously more about the political battle over EFCA, and I have little doubt that it will not be the last of its kind.

More on this issue:

• "Assessing Legal Prospects for Protecting the Right to Secret Ballot in State Constitutions" -- Clint Bolik, Goldwater Institute
• "State Efforts on Combatting the Employee Free Choice Act" -- Alliance for Worker Freedom
• "A Constitutional Amendment to Save the Secret Ballot?" -- Say Anything
• "Push Afoot to Keep Union Secret Ballot" -- Arkansas Democrat Gazette (12/31/2008)

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Two Florida state legislators -- House Majority Leader Adam Hasner and Sen. Garrett Richter -- have introduced a resolution calling for an amendment to the state Constitution that would guarantee employees an opportunity to vote by secret ballot in union representation elections. 

The operative language reads:

Where local, state, or federal law requires elections for public office, requires public votes on initiatives or referenda, or requires designations or authorizations of employee representation, the right of individuals to vote by secret ballot shall be guaranteed.

The full text of the resolution may be viewed here.   

In Florida, a constitutional amendment requires adoption by a three-fifths majority in both the state House and Senate and a 60 percent majority of the electorate. If the measure passes the legislature this year, it would be placed on the ballot in the state’s general election in 2010.

Whether this is a futile exercise is yet to be seen. There is a large and complex body of law on the doctrine of federal preemption of state efforts to regulate labor issues within the jurisdiction of the National Labor Relations Act, and proponents of the Employee Free Choice Act will certainly claim that the measure proposed in Florida would be preempted. 

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Greg Sargent quotes an unnamed “senior House Dem aide” on the prospect that the Employee Free Choice Act might get its first look in the U.S. Senate:

Blue Dog Dems have told House leader Steny Hoyer that they don’t want a vote on Employee Free Choice before the Senate because they fear they’ll end up having to vote for two different versions of the measure, compounding the political damage they may face in moderate districts, the aide says.

“Their concern is that the House will pass something, then the Senate will take up the bill and do something different,” the senior leadership aide tells me. “The Blue Dogs don’t want to end up voting on something that won’t even become law. They’re saying, `See what can get through the Senate first, and then we’ll vote on it.’”

House Dem leaders agree with this assessment, the aide says. Asked if it would anger labor leaders, the aide said that labor might not like it but that labor leaders would “understand the dynamic.”

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Arkansas political columnist and television host David J. Sanders writes today on the Arkansas News website that officials of the Arkansas State Chamber of Commerce met with U.S. Congressman Marion Berry (D-AR) to express concerns about the Employee Free Choice Act. After that meeting, Chamber officials reportedly revealed the contents of the discussions with Rep. Berry:

An official informed the group that Berry recently had told him that he thought the bill was a piece of junk and that he only voted for it because he knew then-President Bush would veto it.

The official then told the group that Berry recounted to him a recent discussion the Blue Dogs had with House Democratic leadership. According to Berry, the Blue Dogs told House leadership that card check wasn’t a free vote for them anymore and that their constituents were giving them a lot of grief over the issue.

The Blue Dogs strongly urged House leadership not to bring this bill back up on the House floor until the Senate had passed something first, because they look like idiots for continuing to pass it and then it dying in the Senate.

The official claimed that Berry had ensured him that this time around, the business community had stepped up its game and he was hearing from a lot of people in his district about how bad this bill really was.

“Blue Dogs,” of course, refers to  a coalition of moderate and conservative Democrats, often Southerners, who don’t always see eye-to-eye with party leadership.

Mr. Sanders apparently received this information from Chamber members, and was unable to persuade either Chamber officials or Rep. Berry’s office to confirm the remarks. But, the apparent reluctance of some in the Democratic caucus to co-sponsor EFCA 09 combined with President Obama’s seemingly dampened enthusiasm, certainly seems consistent with this report.

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Over at NAM's ShopFloor.org, Carter Wood includes a collection of recent letters sent to editors throughout the nation by union activists seeking to debunk the "lies," "misinformation," and "mischaracterization" that EFCA will eliminate secret ballots.  The sophistry behind these silly talking points has been rebutted numerous times before.

Reviewing our recent post on the civil war within UNITE-HERE, however, this item jumped out at us.  In a September 2008 internal memo regarding political strategy, John Wilhelm, President of UNITE-HERE's Hospitality division wrote:

Moreover, in the process for workers to gain union representation, EFCA preserves all the current NLRB procedures and employer opportunities except that it substitutes card check for secret ballot elections....

We suspect we know what his critic Bruce Raynor thinks, but is Mr. Wilhelm also "lying" or "misinforming" about the intent of the bill?

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The blog of the Commerce and Industry Association of New Jersey is unwilling to let UAW President Ron Gettelfinger get away with one of the more outrageous broadsides in the ongoing "debate" over EFCA.  Late last week, CIANJ highlighted a response to Gettelfinger's recent Detroit News piece.  Apparently unable to muster a compelling, objective argument in support of EFCA, Mr. Gettelfinger instead devoted a column to tarring those who would oppose EFCA -- and use the legitimate, lawful rules of the Senate to do so -- with the broad-brushed smear of racism.

After introductory allusions to the Civil Rights struggles of the 1960's, racist employers, and "cowardly terrorists" who would attack black voters in the night, Gettelfinger submits:

The effort to stop social progress was led by Dixiecrats -- Southern Democrats who stood for the privileged elite against the will of a majority of the American people. Today, their spiritual heirs have changed political parties, but they still reward the fortunate few who hold wealth and power and trample the needs of everyone else.

CIANJ's piece extensively quotes a response from Coalition for a Democratic Workplace's Chairman Brian Worth.  Elsewhere, Mr. Worth's rebuttal appropriately calls Mr. Gettelfinger on his unfortunate diatribe:

UAW President Ron Gettelfinger crossed the line when he injected race into the debate over whether American workers should have the right to vote in private during union organizing elections ("Worker rights bill deserves debate, vote," Feb. 6). By comparing opponents of the Employee Free Choice Act to the Southern senators who blocked civil rights legislation in the 1960s, Gettelfinger undermines his own credibility and does a disservice to the labor movement.

Ironically, if one were to lend any legitimacy by continuing analysis of Mr. Gettelfinger's analogy, it should be striking that it was the right of African-Americans to vote freely -- and by secret ballot, protected from the coercion and intimidation of the "cowardly terrorists" -- that so many brave people fought for during the Civil Rights era. 

How undermining the protection afforded by a secret ballot in representation elections better protects voters remains a question EFCA proponents are unable to answer.

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The Pittsburgh Tribune-Review and Pittsburgh Post-Gazette both carry pieces today on the probability that EFCA may be re-introduced in the coming weeks.  We have previously observed -- both in prior blog posts and in our white paper on EFCA in the 111th Congress -- the central role Pennsylvania Senator Arlen Specter (R) will play in EFCA's prospects this year.  That notion is reflected throughout today's PA newspapers.     

The Post-Gazette today declares "Specter: The man in the middle."  The piece notes the pressure on Specter from organized labor regarding the effort to pass EFCA:

The bill, which would make it easier to organize workers, is labor's top priority and considered anathema by the business community, which claims it would eliminate the right to a secret ballot. Most political experts say labor, which has supported Mr. Specter in his past two re-election bids, has to be behind him in order for him to win in the general election.

"Arlen Specter will not be our candidate in 2010 if he doesn't support an opportunity for Americans to have free elections in the workplace," said Bill George, president of the Pennsylvania AFL-CIO, who added if Mr. Specter wins his union's endorsement he expects a lot of labor members to cross over in the Republican primary to vote for him.

Suggesting that the bill will be re-introduced in Spring or Summer, the Tribune-Review reports:

Pennsylvania's Arlen Specter was the only Republican to vote for the Senate measure. Sweeping Democratic gains at the polls in November -- Democrats hold 58 Senate seats -- puts card-check back in play.

It is unclear whether Specter will support the bill again. His office declined to comment.

Specter, who stands for re-election next year, is under fire from fellow Republicans for agreeing to vote for the $787 billion stimulus package and would face more political rage in the Republican primary if he votes for card-check. Yet, should he win the primary, voting for card check could help significantly in the general election in a state with nearly 1.25 million more Democrats than Republicans.

The Tribune-Review follows up with an Opinion piece, asking "Nervous, Sen. Specter?"  Featuring quotes from a potential GOP primary challenger, the paper submits:

Arlen Specter isn't in just a bit of hot water these days — he's fully immersed in a scalding cauldron.

That's how we read the results of a Quinnipiac University poll released Wednesday that illustrates the difficulty Pennsylvania's senior senator might have getting re-elected next year.

With more than a year to go before Specter would even face a challenge in the Republican primary, more people believe Specter should be retired than retained. Forty-three percent of the survey's respondents said Specter should be retired; just 40 percent favor retaining him.

If Senator Specter remains intent on pursuing alternative routes to labor law reform, the tightrope he must walk may be getting more challenging.  But, even these articles note, it is a position in which he has often found himself during his tenure in the Senate.

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Many observers of organized labor have recently watched on with great curiosity as the UNITE-HERE union continues to pull apart at the seems.  The internal "civil war" -- as UNITE-HERE General President Bruce Raynor calls it -- between rival factions within the union has been marked by litigation, calls for dissolution and violence.

Now, sources are reporting that the bickering between camps may impact the union's support for the Employee Free Choice Act.  At the WaPo's WhoRunsGOV blog, Greg Sargent reports that members of HERE locals have been distributing flyers asking members not to support UNITE’s EFCA campaign.  A spokesperson for UNITE locals provided him with a copy of the flyer, and this quote:

“We think it’s really unfortunate that this political infighting is imperiling our efforts to mobilize our members around Employee Free Choice.”

At Politico, Ben Smith's ongoing reporting on the spat includes responsive comment from HERE supporters, who:

explained the fliers as an attempt to forestall a sneak attack from the UNITE side, led by union president Bruce Raynor, who has pushed for a "divorce," but lost key votes at a meeting of union leaders this week in Washington.

HERE accuses the UNITE group of weaving propaganda critical of UNITE-HERE leadership throughout its internal EFCA messaging.  While UNITE spokespeople deny this, one needs only to read Bruce Raynor's recent Huffington Post piece to note his contempt for UNITE-HERE Hospitality President John Wilhelm (a former HERE President).   Amid a laundry list of caustic barbs, Raynor jabs at Wilhelm's concern that EFCA not be viewed as a "magic wand" for the labor movement -- as reflected in this September 2008 memo.  This view of EFCA draws an obvious distinction between the two camps' leaders, and is probably, in no small part, a seed of the current dispute.

It is crystal clear that Raynor and the former UNITE leadership want nothing other than to end the merger in divorce.  It will be interesting to watch how much of a role organized labor's efforts to pass EFCA plays in this "War of the Roses."    

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In addition to the interesting Op-Ed piece in today's Washington Times, there are a number of other pieces running today about the Employee Free Choice Act.

At Politico, author Brett Joshpe submits "Local politics key to card check."  After noting the lack of popularity of the bill among the voting public, Joshpe observes:

While the EFCA will probably sail through the House of Representatives, Republicans in the Senate must remain unified to prevent a 60-vote majority from pushing the EFCA into law. They should insist upon debating the measure so that Americans know exactly what “changing the ways of Washington” means. Perhaps some moderate Democrats will come to their senses, as well. All they need to do is look at public opinion polls back home to realize the political risk of not doing so.

Syndicated columnist Thomas Sowell shares "Random observations on the passing scene" via today's Contra Costa Times, including:

More frightening to me than any policy or politician is the ease with which the public is played for fools with words. The latest example is the "Employee Freedom of Choice Act," [sic] a bill that will do away with secret ballot elections among workers voting on whether to be represented by a union. It is an open invitation to intimidation — which is to say, loss of freedom of choice.

The Virginian-Pilot reports on opposition to EFCA by the Virginia Beach Hotel-Motel Association and the Virginia Hospitality and Travel Association.  Said new Association President Vern Burlage:

"Employees can sign cards and everybody will know how they voted....  Secret ballot is the way to avoid group pressure and intimidation. There's no minimum membership requirement and it targets small businesses, especially hotels."

And elsewhere in Virginia, the Richmond Times-Dispatch runs an editorial criticizing EFCA sponsor Rep. George Miller's recent disparagement of the secret-ballot election:

"The Employee Free Choice Act still provides for an NLRB election process, triggered when 30 percent of the workers petition for one -- same as current law. But a majority of workers could opt for the less divisive majority sign-up process, and the employer would not be able to veto that choice."

Got that? Secret-ballot elections are "divisive" -- whereas a confrontational, sign-this-card-right-now system presumably would not be. Miller also writes that "Every American deserves the right to freely decide whether to form or join a union." Yet a system in which union organizers can buttonhole co-workers in the parking lot seems considerably less free than one in which the decision whether to form a union is made in a voting booth.

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People who have been following the debate over EFCA for some time are well aware that back in 2001, EFCA's chief sponsor Rep. George Miller wrote a letter to a Mexican state government calling for the protection of secret ballot voting in union elections.

The February 13, 2009 Washington Times carries an Op-Ed by F. Vincent Vernuccio highlighting another interesting related item from south of the border.  In a piece critical of EFCA's efforts to replace secret ballot voting with the public card-check process, Vernuccio notes:

Mexico's highest court, the Supreme Court of Justice of the Nation, last year unanimously ruled in favor of secret votes for workers considering which union could represent them in collective bargaining agreements. While Mexico's labor law differs from that in the U.S., any step to safeguard workers' freedom and privacy is a great advance in an economy long bedeviled by measures that destroyed jobs while strengthening unions.

Mexico's highest court affirmed a lower court ruling which cited as justification for their decision the United Nation's Universal Human Rights Declaration and Convention number 87 of the International Labor Organization. The declaration and convention established that secret ballots permit employees to exercise democratic principles while open voting allows for undue pressure and coercion. The National Association of Democratic Lawyers, a group of labor lawyers, academics and labor organizations in Mexico, called the secret ballot "an essential element for respecting workers' rights and for the democratization of unions and the country itself." Democratization and the secret ballot have always been the hallmark of worker freedom and protecting the rights of workers to organize. Mexico is the latest example of other nations following America model for a free and fair workplace-ironically, just as the Obama Administration seems to be abandoning it.

ILO Convention 87 is one of the central provisions that protects employee "freedom of association" and the "right to organise."   This provision, in particular, has been brandished by organized labor as a sword against the American Labor Law system.  The notion that the elimination of the secret ballot, in favor of organizing schemes like card-check more open to intimidation and coercion, might well violate these international principles may provide yet another broad legal argument against EFCA.

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Yesterday, we posted a link to a paper --The Case Against the Employer Free Choice Act, -- written by Professor Richard Epstein of The University of Chicago. Readers might be interested in the debate between Professor Epstein and Professor Michael Gottesman of Georgetown about EFCA’s constitutionality.

It started with Professor Epstein’s December 28, 2008 Wall Street Journal column, “The Employee Free Choice Act Is Unconstitutional.” Professor Gottesman responded on February 4, 2009 in an entry entitled “The Improbable Claim That EFCA Is Unconstitutional” on the American Constitutional Society’s blog. Professor Epstein promptly posted a rebuttal in the comments section. 

For what it’s worth, former NLRB Chairman William Gould, a friend of organized labor who was appointed by President Clinton and is currently a law professor at Stanford University, has also recently opined that EFCA’s interest arbitration provisions are likely unconstitutional.

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Professor Richard Epstein’s column today on Forbes.com, entitled: “ Obama's Welcome Silence On The Employee Free Choice Act,” notes the President’s “wise and judicious silence” on EFCA.  

Right now, President Obama seems to have prudently realized he cannot maintain any bipartisan support if he tries to force the EFCA into law over the fierce and unrelenting opposition of the entire business community. He's right. This nation cannot endure the successive haymakers of card check and compulsory arbitration into the private sector.

Professor Epstein, the James Parker Hall Distinguished Service Professor of Law at The University of Chicago, has recently released an online version of his monograph, the Case Against the Employer Free Choice Act, which is soon to be published shortly by the Hoover Press.

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Kevin Bogardus of the Congressional newspaper The Hill published an article on Saturday entitled: “Contentious labor bill struggles behind the scenes.” Mr. Bogardus reiterates what conservative commentator Fred Barnes said last week on Fox News -- that co-sponsors for the Employee Free Choice Act of 2009 are harder to come by.

In the 110th Congress, House Education and Labor Committee Chair Rep. George Miller (D-CA) introduced EFCA on February 5, 2007 with 230 co-sponsors. Mr. Bogardus quotes unnamed union officials as saying there were 202 House co-sponsors as of the end of last week.

In the Senate, EFCA 07 had 46 co-sponsors. Mr. Bogardus reports that there are only 38 Senate co-sponsors for EFCA 09 to date.

Aaron Albright, spokesman for Rep. Miller’s House Education and Labor Committee said:

We are actively engaged in an effort to collect cosponsors for the Employee Free Choice Act. Until we introduce a bill, I am not going to comment on the number of cosponsors currently signed onto the bill. Needless to say, we do have overwhelming support within the Democratic caucus and I am very confident in the support it will receive in the House.

The Hill asked Rep. Miller last week when he anticipated introducing the bill. Mr. Miller’s reply: "Soon."

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Our friends over at Shopfloor picked up an interesting comment yesterday by Fred Barnes, Executive Editor of The Weekly Standard. In a panel discussion on Fox News, Mr. Barnes opined that the labor movement was “losing ground” on the Employee Free Choice Act:

In the last congress, they had something like 230 cosponsors for the card check bill. This time they're having trouble getting to 200 cosponsors in the House, even though there are more Democrats in the House than there were in the last congress.

And now you have five or six senators, most of them Democrats, who are now kind of queasy on it who weren't before, and are talking about well, maybe there's some alternative to it. So organized labor is trying to make up for lost ground.

In fact, there were 234 House co-sponsors in the 110th Congress, which had 233 House Democrats. The current Congress boasts 255 House Democrats, so Mr. Barnes is correct that labor might have expected even more co-sponsors this time around.

A January 29, 2009 “Dear Colleague” email message from House Education and Labor Committee Chair Rep. George Miller (D-CA) set the close of business on Tuesday, February 3 as the deadline to be an “original co-sponsor” of the bill.

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This morning’s Huffington Post quotes an unnamed AFL-CIO official’s response to yesterday’s abrupt cancellation of a confirmation vote on Labor Secretary designate Rep. Hilda Solis (D-CA): "Enough is enough, the gloves are coming off on Friday." 

The cancellation came shortly after it was discovered that there were tax liens on a business owned by Rep. Solis’ husband. 

Sen. Ted Kenedy (D-Mass), chairman of the Senate Committee on Health, Education, Labor and Pensions issued a statement that the vote had been postponed “to allow members additional time to review the documentation submitted in support of Rep. Solis’ nomination to serve in the important position of labor secretary.”   Politico reports that Sen. Kennedy emphasized that there are “no holds on her nomination” and that “members on both sides of the aisle remain committed to giving her nomination the fair and thorough consideration that she deserves.”

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Today’s rally in support of the Employee Free Choice Act came and went without the bill’s re-introduction as some speculated might happen. 

By most accounts, a few hundred union leaders and supporters joined a few Senators and Congressmen at the Capitol for the rally. The AFL-CIO reported that “thousands” turned out to hear speeches by the legislators present and some employees who spoke of their experiences during union organizing drives.

One of the professed purposes of today’s event was to highlight the delivery of a million or so signatures in support of EFCA to Congress. The DC Examiner’s Bret Jacobson was not impressed:

Consider the larger picture. One million would represent only about one-sixteenth of the unions’ current total membership. Should Congress overhaul an entire labor legal system and remove workplace rights, when only one out of every 16 union members can be bothered to send in propaganda that labor officials have made their highest priority?

As for when we might see the re-introduction of the bill in the 111^th Congress?

The American Prospect’s “Tapped” blog reported this afternoon:

Politically, it looks like both the House and Senate versions of the EFCA bill, which will not have substantially changed since the last attempt to pass it in 2007, will be introduced in the coming weeks, according to Senator Tom Harkin, who has been tasked by Senate Health Education and Labor Committee Chair Ted Kennedy with managing the bill, and Representative George Miller, the lead House sponsor. Walking to a Senate Democratic lunch with President Barack Obama, Harkin suggested the delay on introducing the legislation was related to Al Franken's continuing legal battle over Minnesota's senate election. The senator also expects the nomination of Hilda Solis for Secretary of Labor will clear the Senate before the Easter recess.

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From the Washington Examiner:

Thousands of workers from across the nation will gather on Capitol Hill today to hold a massive petition delivery event urging passage of the Employee Free Choice Act. Kicking off the delivery of 1.5 million signatures in support of the legislation to members of Congress; activists from the nation's unions and progressive organizations will join workers to showcase the broad public support for the bill.

Workers will tell their personal stories about why the Employee Free Choice Act is important to them, joined by two of the bill's key leaders Senator Tom Harkin (D-IA) and Representative George Miller (CA-7). United Steelworkers' International President Leo Gerard will emcee the event, which will also feature Sierra Club President Allison Chin and others. Afterward, workers will personally deliver the signatures to their members of Congress on behalf of working families in their state, encouraging them to support the bill.

This kick-off event will be followed by an ongoing series of events in cities and towns across the country to highlight the groundswell of support for the Employee Free Choice Act as a key piece of creating an economy that works for everyone again.

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Over at its ShopFloor.org blog, the National Association of Manufacturers (NAM) speculates that something may be afoot regarding the introduction of EFCA. It was February 5, 2007, that EFCA’s 223 co-sponsors in the 110^th Congress introduced the bill in the House. 

Beyond the pending anniversary, and the recent American Rights at Work ad launch, NAM notes that ARW may be planning a rally in Washington D.C. on Wednesday. 

But most curious is that NAM has reprinted an e-mail sent by EFCA’s chief sponsor, and House Education and Labor Committee Chair Rep. George Miller (D-CA) setting close of business Tuesday, February 3 as a deadline to be an “original co-sponsor” of the bill.

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The White House’s blog reports:

President Obama called Republican Senator Judd Gregg a "master of reaching across the aisle" in announcing him as his choice to lead the Commerce Department today.

"Clearly, Judd and I don't agree on every issue -- most notably who should have won the election," President Obama said. "But we agree on the urgent need to get American businesses and families back on their feet. We see eye to eye on conducting the nation's business in a responsible, transparent, and accountable manner. And we know the only way to solve the great challenges of our time is to put aside stale ideology and petty partisanship, and embrace what works."

"The Commerce Department has a broad and interesting portfolio," Senator Gregg (R-NH) said, "but its primary goal must be to create jobs by promoting industry, promoting economic activity, and promoting excellence in science. And I intend to pursue those avenues aggressively."

Gregg joins Secretary Ray LaHood (Transportation) and Secretary Robert Gates for a total of three Republicans in the cabinet.

But only one of them was a Senator who voted against cloture in the 110^th Congress -- and may now be replaced with an appointment by the Democratic Governor of New Hampshire, John Lynch. These developments potentially place EFCA opponents on the brink of a successful cloture vote when the bill is introduced. Media outlets report, however, that there was in fact a deal struck between Gregg and Lynch with preserving the filibuster in mind:

Gregg said he refused to accept the post if that happened, and won assurances from Lynch that a Republican would be named to succeed him. Former Gregg aide Bonnie Newman is expected to be appointed to Gregg's seat.

Could these rapidly breaking developments have been the spark that seemed to kick start the activity around EFCA again the past few days?

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Today’s Boston Globe reports that President Obama will, in fact, nominate New Hampshire Republican Senator Judd Gregg for Secretary of Commerce. If Gregg accepts, that will create a vacant seat which will be filled by appointment. Governor John Lynch (D-NH), according to reports, appears set to appoint a Republican to that seat -- thereby preserving the current balance of seats in the Senate:

Lynch said that Gregg would only take the job on condition that a Republican be appointed to serve out his term, an assertion Gregg quickly confirmed. Lynch said he had spoken to Gregg, who would be the third Republican in Obama's Cabinet, and to the White House, and he seemed inclined to give the new president and the state's senior senator what they needed to make a deal.

"It is important that President Obama be able to select the advisers he feels are necessary to help him address the challenges facing our nation," Lynch said in a statement. "If President Obama does nominate Senator Gregg to serve as commerce secretary, I will name a replacement who will put the people of New Hampshire first and represent New Hampshire effectively in the US Senate."

New Hampshire Democrats widely expect Lynch to choose J. Bonnie Newman, a Republican with extensive Washington experience and ties to both Gregg and Lynch. That view was endorsed by one person with knowledge of the successor discussion, who also said Newman, who could not be reached yesterday, would not run in 2010, when Gregg's term is up. That may mitigate Democratic anger over the highly unusual arrangement by giving the party a shot at winning an open seat.

Maintaining that seat as a GOP seat would keep the current tally at 59-41 -- including the Independents in the Dem Caucus, and assuming Al Franken succeeds in the pending Minnesota litigation. As noted previously, it will take sixty (60) votes in favor of cloture to end a Republican filibuster and allow EFCA to proceed to the Senate floor.

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The Wall Street Journal reports:

Republican Sen. Judd Gregg of New Hampshire has emerged as President Barack Obama's top choice for commerce secretary, with an announcement coming as soon as Monday, an Obama administration official and lawmakers said Sunday.

Gregg (R-NH) voted against cloture on EFCA in the 110^th Congress, and with Minnesota’s seat still in question, may remain a critical vote when the measure is re-introduced some time this year. If he accepts this post, appointment of a pro-EFCA Senator could mark a seismic shift in the bill’s prospects. Under state law, Democrat Governor John Lynch has the responsibility of appointing a successor. 

New Hampshire’s voters this past November elected a pro-EFCA Democrat, Sen. Jean Shaheen, to replace EFCA opponent John Sununu. 

Many see Lynch as a centrist, who has appointed Republicans to key administration posts and who might reach across the aisle here. 

White House officials claim they know nothing. Sen. Mitch McConnell says he isn’t worried. Those concerned about EFCA must follow this closely as it could be a bigger story than it would appear on its surface. 

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Organized labor advocacy group, American Rights at Work, released a new TV ad, “The Real Secret,” this weekend. Heavy on the fear-mongering, the ad hammers on the more recent union talking point: that EFCA does not “eliminate” the secret-ballot.

The ad’s script:

“The Real Secret” TV: 30

VO: Corporate greed. It’s caused a meltdown of our economy. Just look at the news … or your retirement account.

Now, greedy CEOs want to prevent workers from joining unions to level the playing field. Their new scheme to keep wages low? Spreading lies about the Employee Free Choice Act.

The truth is the Employee Free Choice Act absolutely protects workers’ right to choose a secret ballot election. But the choice would be the workers. Not their bosses.

That’s the secret Big Business doesn’t want you to know.

On Screen Disclaimer: Paid for by American Rights at Work

The emergence of this approach would seem an acknowledgment that EFCA’s proponents have conceded losing the secret-ballot issue. It’s also a silly argument intended to mislead those in the general public who might not have a thorough understanding of how the National Labor Relations Board’s RC representation process works.

No, the EFCA does not eliminate the secret-ballot procedure language from the NLRA. It only totally eliminates the secret ballot for all workers when a union collects and submits cards from at least 50 percent of a workforce to the NLRB. Arguably a group of employees could still file for an election when 30 to 49 percent of the workforce has signed cards -- but they won't. It will never actually happen -- in part, because the union organizers control the cards, not the employees. What's more, right now, a union needs cards from only 30 percent of the workers to get an election scheduled, and organizers still rarely file until they have cards from 65-75 percent of the proposed unit. This is because unions understand that the supposed support indicated by signed authorization cards is artificially exaggerated. Once the employees receive balanced information from a variety of sources, and have the opportunity to vote in private, the union usually loses support -- and the unions know it.

More commentary on this issue:

• Justin Wilson's blog post "The 30-50 Myth" at the Center for Union Facts' blog
• "Employee Free Choice Act Effectively Eliminates Secret Ballot Organizing Elections" by James Sherk, Heritage Foundation

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