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

The Employee Free Choice Act is proposed federal legislation to amend federal labor law.  But that hasn't stopped numerous state and local legislative bodies from weighing in on the issue.  We've previously reported on the state and local efforts to pass resolutions supporting or condeming EFCA, or to pass state constitutional amendments to that effect.

Glenn Trowbridge, a Las Vegas planning commissioner and former Clark County parks official, and Stavros Anthony, a longtime Las Vegas policeman and current university system regent -- both Republicans -- are in a runoff for the Las Vegas City Council's Ward 4 seat.  The Las Vegas Review Journal's Glenn Cook writes that EFCA has found its way into even this local a level of politics: 

It's also a big deal to the public employee unions who hold huge sway over every local campaign. Anthony learned as much when he failed to get the endorsement of the Las Vegas Police Protective Association -- remember, Anthony is a 29-year cop -- because of his position on a highly partisan issue.

"They wanted to know where I stood on card check," Anthony said, referencing the misnamed Employee Free Choice Act, which would effectively end secret-ballot elections in union organizing. "I said, 'What does that have to do with the City Council?' And they said, 'We need to know where you stand on this issue.' And I told them I could never support it."

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Over a month ago, on Friday, April 24, 2009, President Obama announced his intention to nominate SEIU counsel Craig Becker and union attorney Mark Pearce as Members of the National Labor Relations Board.  But since then, the White House has declined to formally nominate either.  Why the delay?  Some insight this week via Kiplinger: 

Since early 2008, the two existing board members, one Democrat and one Republican, have acted under a legal maneuver blessed by the Bush Justice Department that allowed them to issue hundreds of decisions in less controversial cases on which they agreed. But on May 1, the U.S. Court of Appeals in Washington ruled that a decision by the two members doesn't count because the board lacked a quorum. On the same day, a federal appellate court in Chicago took the opposite view, holding that a separate decision taken by the two members was appropriate and binding.

With the courts at odds, confusion reigns. Dozens of companies are going to court to challenge other rulings, but the two existing NLRB members say they will continue to issue rulings when they agree. The Washington court gave the board an easy out, saying that once a quorum is present, the board can reaffirm all of the rulings in question. But there's the rub.

Obama has announced his intention to nominate two members  -- Craig Becker, the associate general counsel to the Service Employees International Union and Mark Pearce, who has teaches labor law -- but has yet to submit the paperwork. When he does, it will take several months to win confirmation. In the meantime, the Board is in limbo, as are the companies and workers who need answers.

In addition to rubber-stamping all of the questionable two-member Board decisions, the Obama Board, headed by Chairwoman Wilma Liebman, is likely to begin overruling current law set in several areas by the fully-constituted Bush Board.  We outlined several of these issues in previous posts here and here.  While the passage quoted above suggests it might be some time before employers need to fully contemplate that, the Kiplinger piece continues:

There is another option -- a recess appointment this week. But that's the kind of move that Obama is likely to be reluctant to take because of the anger it arouses among the opposition party. Still, it may be the lesser of the evils facing the NLRB and those who depend on it.

On the one hand, President Obama must certainly be weighing the risks of enraging the GOP filibuster bloc by making a recess NLRB appointment at a time when he is seeking to have his first Supreme Court justice confirmed.  On the other, he may need to show organized labor some attention with EFCA's progress slowed and the President having been less than entirely enthusiastic about the bill in its current form.  Employers would be wise to keep an eye on this in the coming week.

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NPR today is circulating a TPM piece which reports that Democratic Rep. Joe Sestak will indeed challenge Senator Arlen Specter in the Pennsylvania Democratic primary for the 2010 Senate election.  The TPM "exclusive" includes a photo of a handwritten note from Sestak to a supporter declaring his intent, and this tidbit:

"He intends to get in the race," says Meg Infantino, the Congressman's sister, who works at Sestak for Congress. "In the not too distant future, he will sit down with his wife and daughter to make the final decision."

This emerging race may have an impact on the evolution of EFCA -- and vice versa.   Days before Rep. George Miller (D-CA) and Sen. Tom Harkin (D-IA) introduced EFCA in the 111th Congress, Rep. Sestak -- with considerably less fanfare -- introduced H.R. 1355, the National Labor Relations Modernization Act.  Rep. Sestak's bill would

1. provide for mandatory arbitration following a 120-day mediation period, if after an initial 120 days of bargaining failed to result in an agreement;
2. increase penalties against employers (similarly to EFCA's proposed changes); and
3. require an employer to provide equal access to the employees to union organizers once an election is ordered.

Many commentators -- including yours truly -- questioned whether or not some of this proposal might provide fodder for discussion as political realities forced card-check to be cut from the bill.

Senator Specter has also suggested similar reforms in his many criticisms of EFCA as drafted, including among others:

• adding an unfair labor practice (ULP) that would occur when an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;
• requiring the parties to begin negotiations within 21 days after a union is certified and allowing either party to call for mediation by the Federal Mediation and Conciliation Service (FMCS) if there is no agreement after 120 days from the first meeting; and
• on a finding that a party is not negotiating in good faith, allowing an order to be issued establishing a schedule for negotiation and imposing costs and attorney fees.

Which, if any, of these ideas gains any traction, and how each of these two men operate in the ongoing debate over EFCA in the months ahead, will likely have significant impact on which of the two candidates organized labor will get behind in the primaries.   That, in turn, could have impact on the prospects for the current version of EFCA, or additional related legislation, in the 112th Congress.

For what its worth, NPR also reports that Republican candidate Pat Toomey, an opponent of EFCA, "welcomed" Sestak's candidacy: 

What's It Toomey? Pat Toomey, the conservative former congressman and ex-chair of Club for Growth who is the leading Republican candidate for the Senate seat, welcomed Sestak to the race: ""While Joe Sestak and I disagree on a host of issues, I commend him for being a principled liberal who stands up for his beliefs and values. I have always believed that Pennsylvania voters -- not party bosses in Washington -- should have the final say over whom their nominees will be."

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 Two pro-union organizations, American Rights at Work and Economic Policy Institute, this week released a new study by Cornell professor Kate Bronfenbrenner, "No Holds Barred: The Intensification of Employer Opposition to Organizing."  The study, like Professor Bronfenbrenner's earlier studies, blames all union failures on unlawful conduct by a majority of American employers.  Among the Professor's conclusions:

It has become standard practice for workers to be subjected by corporations to threats, interrogation, harassment, surveillance, and retaliation for supporting a union. An analysis of the 1999-2003 data on NLRB election campaigns finds that:

• 63% of employers interrogate workers in mandatory one-on-one meetings with their supervisors about support for the union;

• 54% of employers threaten workers in such meetings;

• 57% of employers threaten to close the worksite;

• 47% of employers threaten to cut wages and benefits; and

• 34% of employers fire workers.

Of course, like the data in the Professor's earlier work "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing," all of the data comes from interviews with union organizers.  It is little wonder why unlawful employer conduct is identified as the reason unions fail to organize employees and negotiate first contracts.  Do they expect the organizers to answer the surveys: "We didn't have much to offer the workers and just didn't try hard enough"?

Yet, Professor Bronfenbrenner defends her methodology by explaining that it would not have made sense to talk to the employers involved in the campaigns she studied, because they would only have lied to her:

…it is simply not possible to use employers as an alternate source. As we have demonstrated in previous studies, the overwhelming majority of employers are engaging in at least one or more illegal behaviors (at minimum 75% of the employers in the current sample are alleged to have committed at least one illegal action). Not only would it be next to impossible to get employers to complete surveys in which they honestly reported on illegal activity, but that kind of question would not be permitted by university institutional review boards since it might put the subjects at risk of legal action. 

It certainly sounds like the researchers do not even want to consider the additional -- not "alternative" -- information because they have already presumed their conclusions to be true.  And by excluding additional sources of data for consideration, they seem to have guaranteed the results.  Why would a serious research effort proceed in this manner?  Perhaps the acknowledgments (p. 33) suggest the answer:

This project could also not have been completed without the generosity and fi nancial support of numerous foundations, labor federations, and their affi liate unions. I would like to thank: American Rights at Work, Berger-Marks Foundation, Discount Foundation, Economic Policy Institute, Panta Rhea Foundation, Poverty & Race Action Council, Public Welfare Foundation, Union Privilege; and the following unions and federations: AFL-CIO, AFSCME, AFT, AFTRA, BCTGM, CNA, CTW, CWA, IAMWA, IATSE, IBEW, IBT, IFPTE, IUOE, LIUNA, NEA, SAG, SEIU, UAW, UFCW, UMWA, UNITE HERE, USW, UTU, UWUA, WGAW. EPI and ARAW get special mention for their eff ort in producing this report.

Expect to hear a great deal of citation to Professor Bronfenbrenner's research by EFCA proponents as the debate over EFCA kicks into higher gear later this summer. 

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At the Washington Post's The Fix blog, Chris Cillizza opines that Senator Arlen Specter's party switch may have eased his road somewhat for 2010 election, but that the future of EFCA is still likely the determinative factor for his re-election prospects:

8. Pennsylvania (D-controlled): Sen. Arlen Specter's (D) party switch changes everything. While Specter has gotten off to a very rocky start in his first three weeks as a Democrats, his re-election chances got a major boost when former Pennsylvania Gov. Tom Ridge passed on the race, and the White House and Democratic Senatorial Campaign Committee seem committed to ensuring that Specter is the party's nominee. Rep. Joe Sestak (D) continues to mull a bid but if the Employee Free Choice Act gets rewritten, Specter votes for it and labor lines up behind him, it's hard to see Sestak's path to the nomination. Former Rep. Pat Toomey is almost certain to be the Republican nominee but has yet to prove that he can appeal to independent and Democratic leaning voters. (Previous ranking: 2)

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Santa Clarita, California's KHTS 1120 AM reports that major Secret Ballot Protection Act proponent Rep. Buck McKeon (R-CA) continues to voice his opposition to EFCA:

“The American economy is in real trouble. Americans are losing their jobs and their homes. The notion that Congress would take up an anti-worker, special interest payback like this one – particularly at a time like this, with the economic challenges we face – is unconscionable,” said McKeon. “The Employee Free Choice Act is an affront to basic democratic rights and it must be defeated.”
 

Politico follows former (and future?) Presidential candidate Mitt Romney's barnstorming through Virginia this week which will include:

[an] appearance at an Arlington business forum on the potential impact of the Employee Free Choice Act on Virginia businesses and workers.

On the Opposing Views website Maverick Strategies LLC's Bret Jacobson questions whether class warfare in America has really reached the point to compel a drastic overhaul of our entire system of labor law:

Finally, most of us would rather have a good (though imperfect) job, rather than none at all. EFCA’s negative effects on the economy could lead to job losses totalling hundreds of thousands, if not millions. That brings us back to Capitol Hill.Aside from the political investment of hundreds of millions of dollars by union bosses who have openly declared that EFCA will be their payback, Americans have little appetite for EFCA. Employees certainly don’t like the idea of losing their right to vote on the job, and editorial boards across the nation have concurred. Employers certainly don’t like the notion of having a big-government arbitrator tie their hands so they lose flexibility – akin to one industry that’s driving off a cliff due in large part to miles of terrible union contracts.

Don’t believe me. Ask yourself: Is there any place in American that more resembles a dystopian, Dickensian world than Detroit? And is there any other place where more unions would be less helpful?

And in Hotel Interactive, the American Hotel and Lodging Association (AHLA) continues to lobby its membership against "compromise" efforts:

The compromises offered by pro-EFCA supporters are no compromise. So far, the compromises whispered in Congress—mail-in authorization cards and changes to the arbitration method—are the same original bad EFCA demands just wrapped up in a new package.
 
AH&LA opposes all the compromises that have been floated by EFCA proponents, calling them inadequate. None of them protect our members’ employees from organized labor intimidation or preserve the secret ballot process.
 

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The Federal Election Commission (FEC) has announced that it has closed an inquiry into whether Wal-Mart unlawfully pressured workers to vote against Democrats in the 2008 election. The Commission cited insufficient evidence to support the claim filed by organized-labor groups last year alleging that Wal-Mart had suggested in mandatory meetings that employees shouldn't vote for Democrats because of the Employee Free Choice Act.

According to Wednesday’s WSJ:

Officials cited insufficient evidence that Wal-Mart pressed workers to vote GOP.

FEC commissioners disclosed that they ultimately saw no cause to further investigate the issue after a preliminary review by the commission's general counsel found no evidence of elections-law violations and recommended no further action. The commission was split among party lines, with Democrats pushing for additional inquiry and Republicans declaring no reason to go further.

"There will be no further actions on this complaint," said Judith Ingram, an FEC spokeswoman. She said that the complainants in the case can file suit in the U.S. District Court for the District of Columbia.

More:

• "Election Commission Dismisses Claims Against Wal-Mart" -- Associated Press
• "FEC Dismisses Wal-Mart Complaints" -- CQ Politics
• ARAW/Wake-Up Wal-Mart's FEC Complaint 

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ShopFloor.org notes the irony in the support of EFCA by the Applied Research Center, a "racial justice think tank":

The Employee Free Choice Act is only part of this radical leveling agenda, true. Still, destruction of the secret ballot was a hallmark of the Jim Crow era that deprived African-Americans of their rights. In the pursuit of “racial justice,” this group wants to recreate those days of discrimination.    

How sad.  

The Hill's Blog Briefing Room reported on Monday in "Pelosi: Dems in Congress 'Committed' to EFCA”:

Democrats in Congress are "committed" to passing the Employee Free Choice Act (EFCA), House Speaker Nancy Pelosi (D-Calif.) said Monday.

Pelosi told the AFL-CIO's Building and Construction Trades Department conference in Washington that the strength of the middle class is directly tied to the strength of organized labor.

"Our work in Congress is based on two truths: America's economy is only as strong as America's middle class; America's middle class is only as strong as America's unions," Pelosi told the labor group today, according to prepared notes.

"That is why Congress is committed to passing the Employee Free Choice Act, and why President Obama is ready to sign it into law," the Speaker said.

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The Wall Street Journal reports that Senator Arlen Specter (D-PA) is testing the waters by suggesting two possible alternative components to the Employee Free Choice Act:

Under a potential compromise on the contentious subject of secret-ballot elections, workers could mail in ballots during union elections instead of the bill's current provision in which workers would sign cards collected by union organizers. The compromise approach would theoretically preserve privacy and reduce opportunities for coercion by union organizers and employers.

The second change would restrict the use of arbitrators in contract negotiations to situations in which the two sides fail to reach agreement on their last and best offer. The current version of the bill calls for automatic arbitration after 120 days.

To be sure, these two proposals differ from Sections 2 and 3 of the current version of EFCA.  Yet they still suffer from the same significant flaws as the current bill.  Perhaps that is why business interests were so quick to react:

"We continue to stand in support of the right of workers to have a secret ballot and the right to vote on contracts without interference from government bureaucrats," said Katie Packer, executive director of the Workforce Fairness Institute, a business-backed nonprofit that opposes the Employee Free Choice Act,

Senator Specter's "mail-in" proposal is curious, as it is something that was not included among the many alternative elements suggested by the Senator in his March 24th statement on the Senate floor.  Moreover, earlier reports had Senator Specter's colleague Sen. Tom Harkin (D-IA) pushing an expedited time-frame for secret ballot elections as a possible alternative to card-check.

More details are certain to emerge in the coming days, as Democrats continue to try to find some common ground on an alternative bill capable of gathering 60 votes in the Senate.

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Earlier today, USA Today reported that President Obama spoke at a New Mexico town hall meeting about the Employee Free Choice Act.  USA Today's coverage suggested that the President expressed reservations regarding the card-check provisions.  Now that others are reporting his comments more fully, it seems that the President, in fact, reiterated his support for the main idea behind EFCA -- facilitating union organizing -- but also acknowledged the practical reality that the bill probably cannot be passed in its current form.  He also presented, without endorsing, the "other side of the argument" on behalf of the opposition.  The official transcript of his remarks, via KOAT:

THE PRESIDENT: Okay, let me talk about the Employee Free Choice Act. One of the things that I believe in -- and if you look at our history, I think it bears this out -- even if you're not a member of a union, you owe something to unions, because -- (applause) -- because a lot of the things that you take for granted as an employee of a company -- the idea of overtime and minimum wage and benefits -- a whole host of things that you, even if you're not a member of a union, now take for granted, that happened because unions fought and helped to make employers more accountable. (Applause.)

The problem that we've seen is that union membership has declined significantly over the last 30 years. And so the question is, why is that? Now, part of it, the economy has changed and the culture has changed, and there hasn't been a very friendly politics in Washington when it comes to union membership. But part of it just has to do with the fact that the scales have been tilted to make it really hard to form a union. So a lot of companies, because they want maximum flexibility, they would rather spend a lot of money on consultants and lawyers to prevent a union from forming than they would just going ahead and having the union and then trying to work with -- and collectively -- allow workers to collectively bargain.

So there's a bill called the Employee Free Choice Act that would try to even out the playing field. And what it would essentially say is, is that if a majority of workers at a company want a union then they can get a union without delay -- and some of the monkey business that's done right now to prevent them from having a union.

Now, I want to give the other side of the argument. Businesses object to some of the provisions in the Employee Free Choice Act, because one of the things that's in there is something called card check, where rather than have a secret ballot and organize a big election, you could simply have enough employees, a majority of employees, check a card and that would then form the union. And the employers argue we need to have a secret ballot.

I think that there may be areas of compromise to get this bill done. I'm supportive of it, but there aren't enough votes right now in the Senate to get it passed. And what I think we have to do is to find ways in which the core idea of the Employee Free Choice Act is preserved, which is how do we make it easier for people who want to form a union to at least get a vote and have a even playing field -- how do we do that, but at the same time get enough votes to pass the bill. That's what we're working on right now. I think it's going to have a chance of passage, but there's still more work to be done. (Applause.)

This reflects a somewhat pragmatic approach.  Special interests have wasted no time in excerpting and splicing the President's words to ignore his reference to "compromise" efforts, and to exaggerate his support for the current bill.  See this SEIU mash-up already up on YouTube and compare it to the official transcript above:

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USA Today's The Oval blog just finished live-blogging President Obama's town hall meeting from New Mexico.  During the Q&A period comes the following entry:

12:55 - A man asks about the "employee free choice act," which would help more unions form. Obama praises the contribution of unions to society, and worries about the decline in union membership. But he cites objections to the "free choice" act, including the fact that it does not assure secret balloting for formation of a union. Notes there aren't enough votes in the Senate to get the act passed, but says there may be room for compromise.

This is a clarification of the President's position which differs from recent reports.  News coverage from earlier in the week was vague, at best, but suggested that Vice President Biden told AFSCME that the White House remained fully supportive of the Act.  And yesterday, American Rights at Work released its newest TV ad that suggested that President Obama was in favor of the bill as currently drafted, and not in favor of the "compromise" efforts being led by Sens. Harkin and Specter.

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Earlier this week, the Washington Post's editorial page criticized the business community for a perceived intransigence on EFCA and the Senate effort underway to craft a "compromise" proposal.  Now it seems there are special interests on the other side of the debate equally dug in on their position.

Union lobbying organization American Rights At Work has launched an ad pressuring new Democrat Sen. Arlen Specter (D-PA) to support EFCA instead of exploring alternative avenues to reform American labor law.  The ad "Where will Specter stand?" will run on cable and broadcast television stations in Pennsylvania throughout May.

Senator Specter, of course, was instrumental in generating the discussions now underway in the Senate.  His public announcement in late March that he would not vote for cloture opened the door -- and some would suggest provided political cover -- for Democrats like Sens. Blanche Lincoln (D-AR), Dianne Feinstein (D-CA) and others to openly  acknowledge their discomfort with the bill as drafted.  Contrary to the ad's suggestion, Senator Specter's previous "support" for EFCA was never absolute -- indeed, it was highly qualified.  On the Senate floor in 2007, he declared his belief that EFCA was a seriously flawed proposal, but that labor law reform was necessary.  He advocated a more thorough debate and a bipartisan, analytical approach to that reform in his 2007 floor speech, his 2008 Harvard Journal on Legislation Policy Essay, and in the Senate in late March.

Now that he has switched parties and has reached out to EFCA's supporters to begin exploring reform by alternative routes, it seems groups like ARAW want him to understand that anything short of full support for EFCA in its current form is unacceptable.

More:

• "Labor Group Targets Specter in Card-Check Ad" -- WSJ Washington Wire blog
• "Unions Air First Ad Hitting Democrat Arlen Specter" -- The Plum Line blog
• "Pro-Labor Group Ramping Up Offensive On Specter On EFCA" -- The Hill
• "Labor Pressuring Specter Gently" -- Politico
• "Card Check: Welcome. Welcome. Now Dance." -- ShopFloor.org

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On Tuesday, the current Vice President and his predecessor each discussed the Employee Free Choice Act to their respective audiences. 

According to Sam Stein's report in the Huffington Post, former VP Dick Cheney answered questions on Neil Cavuto's show about the pending legislation.  After declaring that he was an IBEW member for six years as a young man, Cheney stated:

...if people want to join a union, fine, that's their business. There are provisions for that, that allow unions to be represented. But I think what the unions are trying to do here is dramatically expand the base, in terms of membership, and they will in turn generate vast sums of money, in terms of dues and political contributions, and I think it does have wide-ranging ramifications and that the current system, where we have secret ballots for people to decide whether or not they want to be represented by a union is a good way to go. We ought to preserve it.

At the same time, Vice President Biden was addressing an American Federation of State, County & Municipal Employees (AFSCME) conference.   At The Hill's Briefing Room, Michael O'Brien reports his remarks thus:

"We Bidens, we owe you," Biden said of the union's support for his political runs and for his son Beau Biden's run for attorney general in Delaware.

Biden said there is "no way" for the administration to work to restore the middle class without strengthening organized labor.

"That's why we need to pass the Employee Free Choice Act," the vice president said. "You know, I think it should be pretty simple. If a union is what you want, then a union is what you should get."

Biden also suggested that as long as the Obama administration has labor's support, the administration will support labor.

More comment:

• "VP Biden to Labor Bosses: 'We Owe You'" -- NAM's ShopFloor.org
• "WIll Unionizing Your Business Help Rebuild The Middle Class?" -- America's Best Companies blog
• "McGovern says the secret ballot is 'a matter of principle'" -- Politico

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At the National Review Online, former Board Member Peter Kirsanow joins the chorus of voices taking issue with today's Washington Post editorial.  In "EFCA Compromise Nonsense," Kirsanow asserts:

First, the idea that the EFCA amendments presently being floated constitute a "compromise" is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The "compromise" is merely a recognition among Democrats that they can't muster the needed support for EFCA from within even their own ranks.

 

 

Second, the allegedly "unfair barriers" to unionization that the WaPo laments were in place 50 years ago when unions represented 35% of the private-sector workforce. They were in place 30 years ago when 24% of the workforce was unionized. And they're essentially the same today when only 7.5% of the workforce is unionized. Did the WaPo run an editorial decrying the unfairness of the system when unions were in ascendance?

 

   *    *    *

 

The "quickie election"/equal access "compromise" is not a response to an unfairly tilted playing field. It's an attempt to salvage some aspects of a seriously flawed bill that may resuscitate the fortunes of labor unions but does little, if anything, to protect employees' rights or the ability of American employers to compete.

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Earlier today, we included a link to a Washington Post editorial which criticized business interests for remaining opposed to talk of an EFCA "compromise":

... the coalition failed to acknowledge any flaw in the existing process -- except to the extent that it suggested, falsely, that the current playing field is tilted in favor of unions. That hardly sounds like bargaining in good faith.

NAM was quick to respond with a few thoughts, and now, James Sherk of the Heritage Foundation has posted a thorough explanation of the criticized position that current labor law is, in fact, skewed in favor of union organizers.  As support, Sherk cites:

• Unions control the election timing, so workers do not vote until union support peaks.
• Employers rarely learn of the organizing drive until unions ask for an election, so unions have months to build support while employers have just one month to present the other side.
• Employers may not ask employees if they support the union. Unions may ask employees how they will vote and focus their efforts on persuading undecided workers.
• The law severely restricts employer speech while allowing unions to say almost anything they want. Employers may not promise to improve working conditions if workers vote down the union. The union may promise anything it wants, even if it knows it cannot keep those promises.
• Employers may not even ask workers what problems they have in the workplace and why they want a union. Unions can ask workers about anything they want.
• Unions may not campaign while workers are on company property and on company time. However the company must give unions the addresses of every worker and unions can visit workers at their homes. Employers are legally prohibited from visiting workers homes to campaign.

His conclusion:

The only way for unions to organize most companies is if workers never get the chance to hear the other side and learn that, empty union promises aside, organizing won’t actually do much to help them. The goal of the misnamed “Employee Free Choice Act” is to force workers to publicly commit to a union before ever getting to hear the other side. That’s great for union organizing, but not for workers.

These card-check “compromises” have the same goal. Snap elections are intended to deprive workers of an informed choice. They would force workers to vote after months of campaigning by the union but with only a few weeks to hear the management side. How is that fair, and how does that help workers? Mandatory union access to company premises at staff meetings is intended to deter companies from discussing the downsides of organizing. If an employer doesn’t want the union disrupting their workplace they cannot talk to their employees about why unionizing might not be everything the organizers have promised.

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The Washington Post today editorializes that business interests are not open to discussing compromises on EFCA, "The Imperfect Union Bill":

That approach is being floated in Congress by, among others, Sen. Arlen Specter (D-Pa.), who suggested that an election be held within three weeks of the union filing such a request with the National Labor Relations Board and that union organizers be allowed "equal time under identical circumstances" to make their pitch to employees if management has held "captive audience" speeches making the anti-union case. Some of labor's strongest backers in Congress, aware that the measure as written probably lacks the 60 votes needed, are discussing this and other potential compromises.

The other side remains dug into a "no compromise" stance. In a "Dear Senator" letter last week, the Coalition for a Democratic Workforce, composed of 580 organizations including the U.S. Chamber of Commerce and the National Association of Manufacturers, summarily dismissed any such discussion. "Let us be clear and frank on this matter; there can be no acceptable 'compromise' on any issue of labor law reform due to the very real threat posed by EFCA," the group wrote. Moreover, the coalition failed to acknowledge any flaw in the existing process -- except to the extent that it suggested, falsely, that the current playing field is tilted in favor of unions. That hardly sounds like bargaining in good faith.

The National Association of Manufacturers' (NAM) ShopFloor.org blog poses a few thoughts in response to the WaPo editors:

This is a classic example of Washington political thinking that elevates process over substance, viewing compromise and consensus as valuable in and of themselves. To the vast majority of NAM members, businesses small and large, the possibility of forced unionization and a government-imposed binding arbitration are matters of life and death. A “compromise” looks like, “Please, just kill us a little bit…later.”

And who is it exactly doing the “compromising” up on Capitol Hill? Senator Tom Harkin compromising with Sen. Arlen Specter? The AFL-CIO compromising with the Teamsters? Starbucks with Costco?

   *  *  *  

Organized labor does not win every union organizing election, and that’s “the problem” they want the Employee Free Choice Act to fix. But labor has never engaged in good faith discussion about the issue, starting with its decision to dishonestly represent the bill as “free choice.”

Given that the legislation is a raw power grab by organized labor, where’s there any room for compromise?

Reflecting similar sentiment, NJBIZ.com features a piece today on increased regulation of small business by the 111th Congress and the Obama Administration, "A More Sinister Side to Stimulus":

“Any time there are more regulations that small businesses must comply with, it takes away from their focus on their core competencies,” said Don Mallo, vice president of human resources at The Extensis Group, a professional employer organization based in Woodbridge. “It is difficult for them to keep track and comply with a myriad set of regulations … they don’t have the infrastructure in place to comply.”

The federal stimulus bill, formally called the American Recovery and Reinvestment Act of 2009, and the Fair Pay Act already are law; Congress is considering another 10 measures.

“The number-one law on everyone’s mind is the Employee Free Choice Act,” Mallo said. It represents “a complete overhaul of the balance of power in labor relations.”

   *   *   *   

Mallo said another disturbing aspect for businesses is that the proposed Employee Free Choice Act specifies that after a union wins an election, negotiations on a new contract with the employer automatically go into binding arbitration if no agreement is reached within 120 days. “That is even more radical than the loss of the secret ballot,” he said.

And the South Bend Tribune Business Weekly suggests that prudent employers continue to oppose the measure, while preparing for the worst case scenario:

As union leaders press for passage of the federal Employee Free Choice Act (EFCA), business leaders are opposing the change while positioning themselves to head off the perceived increased likelihood of unionization if the measure becomes law.

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In a post a few weeks ago, we speculated that as EFCA's prospects dwindled, employers might expect to see a recognizable uptick in union corporate campaign activity.  Now that card-check is possibly dropping out of the compromise bill being crafted in the Senate, employers must be prepared to face increased organizing by corporate campaigns.  After all, securing agreement on card-check recognition -- often accompanied by an employer's pledged "neutrality" -- is usually the primary goal of these campaigns.  These efforts confront the target employer with a highly coordinated campaign of negative publicity, consumer pressure, legislative and regulatory action, and litigation in order to coerce acquiescence to union organizing efforts

And it appears that the efforts are indeed becoming more visible again.

Yesterday's Boston Globe reported on Change To Win's latest salvo in its ongoing campaign against retailer CVS Caremark: 

CVS Caremark Corp. last year had a 67 percent increase in the number of state violations for allegedly overcharging customers, the largest of any retailer in Massachusetts, according to a report to be released today.

Consumer advocates and organizers from Change to Win, a coalition of American labor unions, plan to unveil the analysis - compiled from inspection reports from the Massachusetts Office of Consumer Affairs and Business Regulation - and call upon lawmakers to do more to strengthen pricing protections.

Beth Israel Deaconess Medical Center CEO Paul Levy continues his excellent blogging on the SEIU's corporate campaign against the Boston hospital, following up an earlier post this week with "Because It Can":

There are sightings of a new mobile billboard hired by SEIU to burn fuel through the neighborhoods of Boston. Add to that the likely rental of bus and trolley stop ads, the ubiquitous internet ads, on top of purchasing full paid ads in the local newspapers. I am sometimes asked, "Why does the SEIU do this?"

As you all know by now, the ads have nothing to do with organizing workers. They are meant to denigrate the reputation of the hospital as part of a corporate campaign. Even if any of the accusations made in the ads were to be accurate, why would the existence of problems at BIDMC be an argument for unionization? By that logic, what would one conclude from certain types of problems at the SEIU?

And late last week, Cintas announced that it would appeal the recent dismissal of its RICO lawsuit against UNITE-HERE and the Teamsters arising out of the unions' long corporate campaign against the uniform company.  Per a statement released by the company:

“We strongly believe in the merits of this case and are hopeful that the Second Circuit Court of Appeals will not allow the District Court’s decision to stand,” said Scott Farmer, Chief Executive Officer of Cintas Corporation. “We disagree with the recent ruling and remain committed to protecting Cintas and our employees from the unions’ ongoing extortion,” he added.

Cintas alleges that, for the last six years, UNITE HERE and the above named labor organizations have carried on a campaign of negative, untrue and unlawful attacks against Cintas in an effort to extort concessions from the company that would enable UNITE HERE and the Teamsters to become the official bargaining representatives for Cintas employees without a valid showing of majority support and without those employees ever being able to freely decide whether they want a union. At the outset of its corporate campaign against Cintas, Bruce Raynor, Co-President of UNITE HERE publicly stated he intended to ‘break the back’ of Cintas if the company did not agree to his demands. The company has long maintained that the right to choose whether to be a member of a union belongs to each individual employee, and has continually reiterated its commitments to protect its employees’ rights to the secret ballot election process.

Time will tell whether the novel RICO approach by employers will preclude more widespread use of the corporate campaign.  In the meantime, however, since it appears the Congress may be unable to deliver card-check organizing to unions, employers should be prepared to face alternative union efforts to obtain it via this potentially effective method.

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More comment from around the web regarding today's news that Senator Harkin's (D-IA) EFCA compromise efforts appear to maintain some form of mandatory interest arbitration in the bill.  Elsewhere in today's Wall Street Journal, former Senator George McGovern expands upon his previously stated opposition to EFCA, taking exception to the arbitration provisions:

My perspective on the so-called Employee Free Choice Act is informed by life experience. After leaving the Senate in 1981, I spent some time running a hotel. It was an eye-opening introduction to something most business operators are all-too familiar with -- the difficulty of controlling costs and setting prices in a weak economy. Despite my trust in government, I would have been alarmed by an outsider taking control of basic management decisions that determine success or failure in a business where I had invested my life savings.

When it comes to labor disputes, both parties should be guaranteed a real chance for compromise under the joint economic threat of contract breakdowns. George Meany, president of the AFL-CIO for nearly 30 years before retiring in 1979, had it right in condemning mandatory arbitration as "an abrogation of freedom."  

ShopFloor.org expands upon McGovern's piece:

Organized labor regards the right of the worker to withhold his labor as almost sacred, a core principle they fought to defend and write into law. And now labor’s leaders want to abandon that principle under the guise of “free choice.”

It’s hard to believe that the rank and file really want to surrender their rights just because labor bosses tell them to.

Finally, Diana Furchtgott-Roth of the Hudson Institute writes:

Binding arbitration could have even more pernicious consequences than ending the secret ballot. It would allow an undefined arbitration board, appointed by the Federal Mediation and Conciliation Service, itself headed by a political appointee, to set compensation packages for firms and workers that they would be forced to accept.

Unlike voluntary arbitration, the parties would not have an opportunity to choose members of the panel, nor would they have recourse to a higher authority, such as the courts, if they were dissatisfied with the results. Workers could be required to accept lower salaries and less vacation than they could get elsewhere, and firms could be forced into unproductive agreements that could eventually lead to bankruptcy.

With just a few lines of legislative language, Congress would revoke for newly-organized firms the principle of free collective bargaining—that employers and unions may walk away from a contract they find unsatisfactory.

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The Wall Street Journal reports that Senators are busy working on a compromise version of EFCA that would drop the bill's card-check provision in favor of an expedited secret ballot election process.  The report indicates:

Compromise talks are being led by Sen. Tom Harkin (D., Iowa), the bill's lead sponsor in the Senate. Kate Cyrul, a spokeswoman for Mr. Harkin, declined to comment on details of the compromise being discussed. But she said the senator "remains confident that we can address these issues without compromising the core provisions of the bill."

Among the changes being discussed are dropping the card-signing provision and setting a 21-day deadline for an election to be held -- about the half the median of 40 days that union elections currently take, according to people familiar with the talks. An aide for Mr. Specter said the senator is "generally supportive" of the idea that an election must be held within 21 days if the employer wants a secret ballot.

This is consistent with reports from late March which had Sen. Harkin approaching moderate Republicans to attempt to reach consensus on an approach to labor law reform.  A shortened election period is an alternative element about which we speculated in our February 2009 white paper, "The Employee Free Choice Act in the 111th Congress".

According to this new WSJ report, however, mandatory interest arbitration may still be on the table in some form:

Another compromise relates to contract negotiations. The bill currently calls for arbitrators to set contracts if an employer and a new union fail to agree within 120 days. Under a compromise, mediators -- rather than arbitrators -- would play a bigger role in helping the sides negotiate a contract. Arbitrators could still be used to rule on certain contract provisions after both sides failed to agree.

Unions of course will remain insistent that mandatory arbitration remain in the final bill, as it provides them a safety net for failure to obtain a contract otherwise.  While much of the attention devoted so far to EFCA has been critical of the bill's card-check provisions, commentators are starting to point out the flaws of the arbitration provision as well.  But beyond the practical objections to government arbitrators setting wages, benefits and terms of employment for private employers, the mandatory interest arbitration provision is entirely antithetical to the very essence of American labor law. 

The collective bargaining process was always intended as a balancing between the parties in a free economic market.  At all times during the process, the employees and/or their union representative retain the right to engage in economic pressure – to withhold their labor by means of a strike – in an effort to persuade the employer to modify its positions. But voluntary agreement has always been the most fundamental component of collective bargaining. Indeed, Samuel Gompers, founder of the American Federation of Labor and a father of the American labor movement, said: “The whole gospel of the labor movement is summed up in one phrase... freedom of contract -- organized labor not only accepts, but, insists upon, equality of rights and of freedom.”  EFCA's interest arbitration provisions are a radical and inappropriate departure from those principles.

No word in the WSJ piece on whether Sen. Harkin is including EFCA's remedial provisions and increased penalties against employers in his compromise discussions as well.

More coverage and comment:

• "Tom Harkin aims for Arlen Specter EFCA Compromise" -- Politico
• "Specter Eyes Support for Employee Free Choice Bill" -- People's Weekly World
• "SEIU Talks EFCA With Specter -- Says It's 'Critical' Issue" -- TPMDC

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Today's ShopFloor.org reports on the release of statistics by BNA which indicate that unions won 66.8 percent of NLRB elections held in 2008 -- a considerable increase over 2007:

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Perhaps providing EFCA's critics a prime example of the type of deception card-check organizing can subject workers to, The Hill reports that American Rights at Work is "using tags on Twitter to con opponents of the legislation into signing a petition supporting it."   According to The Hill:

The misleading campaign first showed up on Saturday, when EFCANow posted to its Twitter account: "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition," followed by a website.

Since Saturday, nearly a dozen entries into the group's Twitter feed mention Gingrich, the general chairman of American Solutions, and Anuzis, who heads American Solutions' anti-EFCA campaign.

Elsewhere, the article notes:

Twitter has become a popular platform for groups on both sides of EFCA — also called card-check — debate. The Service Employees International Union (SEIU), AFL-CIO and Communications Workers of America are all using the site to send brief messages to supporters, while those opposed to the bill are rallying their troops as well.

While not mentioned in The Hill piece, one can follow all the updates featured here on EFCA Report via our Twitter feed. 

A final interesting political tidbit via The Hill, but apparently reported initially via Twitter:

SEIU chief Andy Stern on Sunday used his Twitter account to call Rep. Joe Sestak (D-Pa.) "impressive" and to reveal that he would meet with Sestak on Monday.

Sestak is considering challenging Sen. Arlen Specter (D-Pa.), who bolted the Republican Party last week, in next year's Democratic primary. Though unions have held out hope that the new Democrat will change his mind, Specter has said he will not vote for EFCA. Sestak is an original co-sponsor of the bill.

Of course, Rep. Sestak (D-PA) is also one of the first to have introduced an alternative to EFCA.  On March 5th, with little fanfare or attention, he introduced the National Labor Relations Modernization Act (H.R. 1355).  This law would:

1. provide for mandatory arbitration following a 120-day mediation period, if after an initial 120 days of bargaining failed to result in an agreement;
2. increase penalties against employers (similarly to EFCA's proposed changes); and
3. require an employer to provide equal access to the employees to union organizers once an election is ordered.

So, it would seem both these men have at times supported EFCA, and also recognized the potential for some alternative labor law reform proposals.  It should make for interesting primary season discourse, to say the least.

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Against the backdrop of the White House's Chrysler-UAW deal, today's Wall Street Journal assesses the President's approach toward labor interests during his first 100 days thus:

Business groups say that, generally, Mr. Obama hasn't bowed to labor as much as they feared. "It was a fear in the business community that we would see more right out of the gate," said Michael Eastman, executive director of labor policy for the U.S. Chamber of Commerce. He said he wasn't sure whether some pro-labor initiatives haven't moved ahead in Congress because of the focus on the economy or because the administration wants to avoid a fight with business .

Mr. Obama has said he supports the Employee Free Choice Act, a measure that would make it faster and easier for unions to organize workers and a top priority for labor leaders. But the president hasn't actively promoted the legislation, which business groups oppose because they say it wouldn't give them time to campaign against union organizing and could force labor contract terms they can't afford.

Bill Samuel, director of government affairs for the AFL-CIO, said the labor federation gives Mr. Obama "a lot of credit for having a very bold agenda" on labor. But another union official said labor leaders would like Mr. Obama to push more aggressively for the unionizing bill.

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Jennifer Rubin asks at Commentary Magazine's blog whether the groups that opposed EFCA are as well prepared to confront a "lite" version of the bill offered as compromise.  Her excellent post suggests these strategic possibilities:

... There are a couple avenues which they haven’t yet explored, in large part because they were able to beat back EFCA by focusing on the prospect of losing the secret ballot and the huge problems (legal and economic ) with mandatory arbitration.

The first is to back bipartisan reform. Enshrine in statute and enforce the Bush era measures combating union corruption and requiring financial disclosure, make proposed fines for unfair labor practices apply to both unions and employers, and ensure that whatever time limits on elections and access to employer premises (or email) which are required for employers also apply to union decertification elections and union premises (or email), respectively. That might either scare off Big Labor or, if not, maintain the traditional balance between labor and management that has been a hallmark of federal labor law for decades.

The second is to go after the premise that any of this is needed at all. EFCA has been a solution in search of a problem, resting on the questionable notion that unions are losing “market share” not because of worldwide trends against unionization or  because  of younger worker’s lack of affinity for unions but because of nefarious actions by employers. This requires some sober discussion and fact-finding hearings, which may not be in the offing in a Democratic-controlled Congress where the hearings are likely to be stacked heavily in favor of pro-union witnesses. Nevertheless, business groups would be wise to start educating lawmakers and the public if they want to burst the myth that the solution to Big Labor’s woes is more federal legislation

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