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

Columnist Brian A. Howey published a full-length interview with Senator Evan Bayh (D-IN) at his Howey Politics Indiana (HPI) site.  Months ago, we noted Senator Bayh's formation of the "Practicality Caucus" and speculated that groups of moderates would likely seek to change the debate over EFCA.  It seems that remains a strong possibility:

HPI: Where are you on card check? I noticed all the labor guys filing out of here as I arrived and I see you have all your limbs still attached.

Bayh: I’m for reform of the labor law system. I’ve said that repeatedly. I think there are problems with the election process getting strung out months and months and months. Some of the penalties for either side committing abusive conduct are either meaningless because they’re too small or they get strung out for years and it doesn’t have an impact. And when you do have successful elections, sometimes the negotiations go on for years and the results of the elections are frustrated in that. At the same time, I think preserving the secret ballot is a good thing. The hardest issues are what do you do once there’s been a successful election and there’s just an impasse at negotiations? I don’t think we’re going to have binding arbitration. But is the mechanism short of that? Is it some sort of last best offer? Is there some sort of finding of bad faith trigger? Some sort of action for mediation? I don’t know. I’m not on the committee that handles that, either, so I am an observer. I’m hoping we can reach a sensible compromise. Many in the business community this summer felt this is going to go off on an irrational way. I’ve heard their concerns. But many in the business community say, “Look, if you can preserve the secret ballot, have reasonably prompt elections, meaningful penalties for those few bad actors out there, then there is some incentive for people to bargain in good faith.” Many in the business community would support that kind of thing. Many on the labor side would say that’s not everything they want, but it’s a step forward. So I’m hopeful we’ll end up in that place. Only time will tell. I told the labor guys this and this is above my pay grade, but I don’t think we’re even going to vote on it this year.

Hat tip: @WorkforceFrdm

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On September 9, the McKenna, Long & Aldridge Political Law Group introduced its new Pay-to-Play Law Blog (www.paytoplaylawblog.com), dedicated to helping readers understand and monitor the status of proposed pay-to-play legislation.  Created by Partner and Political Law Group leader Stefan Passantino and Associate Amol Naik, the blog is set to become a leading online community for analyses of federal and state level pay-to-play regulations regarding lobbying, contributions, and gifts.

"With an ever increasing intensity, state legislatures have responded to legitimate voter resentment over various ethics and campaign scandals by passing ever-stricter laws restricting or regulating contributions and/or gifts by business entities doing business with government entities," noted Stefan.  "This valid desire to 'connect the dots' between political money and state procurements has resulted in increasing complex legislation in which state legislators appear to be engaged in a constant effort to outdo each other in the eyes of their constituents with respect to the transactions they prohibit and the consequences to corporations for failing to comply."

The Political Law Group hopes the blog will draw from the firm's considerable experience and resources to provide insights on pay-to-play issues as they will affect each state.  "Our goal is to inform and foster debate surrounding this emerging field of regulation," said Amol.  "We intend to post frequently on these topics with respect to state trends, developments, and concerns for compliance."

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At kausfiles, Mickey Kaus suggests that the recent town-hall anger expressed toward the Obama administration may be fueled, in part, by the President's relatively unknown political persona.    His theory is simple: unfamiliar issues plus unfamilar President lead to increased public paranoia.  As a prime example of this phenomenon, Kaus points to the President's position on EFCA's interest arbitration provisions: 

For example, a few months ago I went to a discussion of the pending "card check" bill Obama has endorsed (enigmatically!). Talk turned to the bill's astoundingly intrusive provision for federal arbitration of initial labor contracts, which would iinevitably involve not only the setting of wages but also the organization of work itself. A conservative law prof said he knew Obama as a colleague, and the Obama he knew wouldn't really want that level of detailed and pervasive (if uncoordinated) government direction of economic enterprises. Was the prof right? I have no idea. In contrast, I think I have a pretty confident idea of where Bill Clinton would come down on that issue. I even have a clear idea of where Jimmy Carter would come down on the issue.**

Kaus drops a footnote to editorialize further on the prospect of mandatory private-sector interest arbitration:

**--Of course, one reason a voter might not have a clear idea is that it's been heretofore hard to imagine that mandatory federal arbitration would even be an issue--in recent decades it's been beyond the mainstream pale. If unions didn't like a deal they could strike and try to get a better deal. Then labor got desperate and came up with mandatory arbitration.

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Kevin Bogardus of The Hill remains one of the most active reporters on the status of the Employee Free Choice Act.  His piece this morning compiles the commentary of numerous Democrat lawmakers seeking to mitigate Senator Arlen Specter's (D-PA) assurances to the AFL-CIO that an alternative EFCA bill had been finalized and would pass in 2009.  Confirming an earlier report by the National Association of Manufacturers Shopfloor Twitter feed, Senator Tom Carper (D-DE) indicates in the piece that there have been no formal talks on the union bill since July, and, that moderate Democrats have not been involved in discussions.

Other remarks from the piece:

• Senator Carper:

“As they say, frank and honest discussion. I think we have made real progress and narrowed somewhat of the differences between organized labor and the business community. We are not quite there yet. My hope is we will finish what we have started.”

• Senator Harry Reid (D-NV):

Asked about any deal on the bill, Majority Leader Harry Reid (D-Nev.) said,” I’m not aware of any.”

• Senator Dick Durbin (D-IL):

Majority Whip Dick Durbin (D-Ill.) said the same, calling the issue “a work in progress” and saying he expects the Democrats’ lead negotiator, Sen. Tom Harkin (D-Iowa), will inform Democrats when a deal is reached.
 

“It’s been in progress for months,” Durbin said. “I think if they ever reach common agreement, they’ll notify us and then we will take it from there.”
 

And confirming Carper's assessment of the "Centrist Democrat" involvement in these talks:

“Nothing final, to my knowledge, has been finalized, but I know members from both sides have been working on, I guess, a compromise,” said Sen. Mary Landrieu (D-La.).
 

Sen. Kay Hagan (D-N.C.) was surprised to hear the issue was being revived. “From what I understood, the whole card-check issue was dead,” Hagan said.
 

And Sen. Blanche Lincoln (D-Ark.), who faces reelection in 2010 and said earlier this year she would oppose the bill, said she is unaware of any changes. “I haven’t heard or seen anything yet,” Lincoln said.

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During the past few days a virtual parade of high-ranking Democrats have addressed the AFL-CIO constitutional convention to pledge support for organized labor and the Employee Free Choice Act.  President Obama, Secretary of Labor Hilda Solis, Senate Majority Leader Harry Reid (D-NV), and House Speaker Nancy Pelosi (D-CA) have all spoken to the assembled union delegates.  Today, The Washington Post Capitol Briefing blog reports Senator Arlen Specter (D-PA) delivered the most interesting message regarding the Employee Free Choice Act -- namely, the conceptual contents of the revised bill which will be passed before year's end:

After his speech, Specter detailed the revised bill he has been crafting with Senate Democrats, the rough outlines of which have been trickling out for weeks. The revised measure would not include the most controversial provision -- allowing workers to organize by getting their co-workers to sign pro-union cards, instead of having to hold secret-ballot elections in the workplace. Unions argue that such elections are unfairly dominated by employer threats and intimidation, but the provision to drop the secret-ballot election has proved highly unpopular with conservative Senate Democrats.

Instead, Specter said, the bill would try to make union elections more fair by sharply limiting the time between organizers' declaration that they have enough support to call an election and the day of the vote, to reduce the potential for employer intimidation. Organizers would also be guaranteed access to workers if employers held mandatory anti-union meetings on company time. And the penalties for employers who break labor law rules would be triple what they are today.

The bill would also tweak its other major element, which has gotten less attention but is also anathema to employers -- mandatory arbitration for employers and unions who fail to reach a contract within a few months. As it stands, more than a third of newly formed unions never get a first contract and wither away, which is why labor supporters say mandatory arbitration is needed. But employers vigorously oppose having government-appointed mediators set contract terms. To allay employer concerns that unions would ask for the moon in hopes of the mediator splitting the difference, the revised bill would go with "last best offer arbitration" -- the approach used in baseball arbitration, in which the mediator has to pick one offer or the other, which encourages the negotiators to offer a reasonable deal.

Specter told reporters that he was confident that this package would get the 60 votes needed to break a filibuster -- and not one more. No Republicans would vote for the bill, he predicted, but he was sure that every Democrat would vote against a filibuster, including conservative Democrats who were very wary of the initial "card check" bill, such as Blanche Lincoln (Ark.) and Ben Nelson (Neb.) He said he had spoken with both of them and while they did not say so explicitly, he was left with the impression that they would help break a filibuster, if not vote for the bill itself.

 More coverage:

• "Specter tells AFL-CIO he backs organizing bill" -- Associated Press
• "Specter seeks labor support at AFL-CIO conference" -- Pittsburgh Post-Gazette
• "Specter: Deal pounded out on card check, should pass this year" -- The Hill

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At the WSJ Washington Wire blog, Melanie Trotman reports that Secretary of Labor Hilda Solis today told the AFL-CIO Constitutional Convention that she would be getting more active in the effort to pass EFCA:

Hilda Solis made a shift that’s certain to please unions.

The labor secretary abandon her passive support of the union-organizing bill now sitting in the Senate, telling labor unions Monday that she’ll actively work with the White House to “make the strongest case possible” for passage of the Employee Free Choice Act.

Last month, when asked about her efforts to push the bill that would make it easier for unions to organize workers and win contracts through binding arbitration, Solis said she supported its underlying principles but was leaving the rest up to Congress. “Congress is the voice of the public and I’m just the administrator,” is how she had put.

Today, there was no equivocation. In her speech to the AFL-CIO convention in Pittsburgh, she said she and President Barack Obama “will join you in the fight for the Employee Free Choice Act.”

“I will work with the White House so that together we can make the strongest case possible” for the bill, Solis said to applause.

Though she didn’t provide specifics on what she and Obama intend to do, the pledge comes at a critical time for the Obama administration as it reaches what it hopes will be the last stretch of the push for a health-care overhaul. Solis’s health-care pitch revived slogans that energized audiences during Obama’s presidential campaign: “Are you fired up and ready to go? Yes we can, yes we will? I’m fired up,” she chanted.

More coverage:

• "Secretary Hilda L. Solis AFL-CIO Constitutional Convention Remarks" -- AFL-CIO
• "Labor Secretary Hilda Solis at the AFL-CIO Convention" -- AFL-CIO Convention Videos
• "Labor chief pledges White House support for reform" -- Reuters
• "Card Check: Creating Jobs By Destroying Them" -- ShopFloor.org

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At The Hill yesterday, Kevin Bogardus reported that Senator Tom Harkin told a union lobbying group that but for the late Senator Kennedy's illness, the Senate had 60 votes on a "compromise" draft of EFCA back in July:

“As of July, I can tell you this openly and I know the press is all here but we had worked out a pretty good agreement. Labor was at the table,” Harkin told a crowd of activists organized by American Rights at Work, a labor advocacy group. The activists are set to swarm Capitol Hill Thursday to lobby for the bill.

Harkin said prominent labor leaders were on board with the deal, including AFL-CIO President John Sweeney and Andy Stern, president of the Service Employees International Union.

“That’s when we needed 60 votes and that’s when I called to get Sen. Kennedy down because we needed him for three days. That’s when Dr. Horowitz told me that he couldn’t make it,” Harkin said.

Whether this is merely an encouraging message to an important Democratic constituency, is hard to determine.  And unless and until Massachussets changes its laws to allow Democratic Governor Deval Patrick to appoint a successor, or Kennedy's seat is filled by a special election early in 2010, it seems unlikely that anything will happen to corroborate the Senator's claim.  Harkin refused to provide any additional detail about the brokered version of the bill:

“I will not say because it was closely held, it never leaked out and it still hasn’t,” Harkin said. “I took it off the front-burner and put it on the back-burner so it is still on warm, OK?”

However, back in June, Senator Harkin had asserted that he would likely be in position to advance the legislation once Al Franken was seated in the Senate in July; and, not too long before that, Harkin was reportedly in significant discussions to reach consensus on an alternative.

More on these events:

• "Harkin had the votes to pass the Employee Free Choice Act" -- CongressMatters
• "On Those Harkin Comments" -- The Truth About EFCA
• "Card Check: Harkin Then, Harkin Now" -- NAM's ShopFloor.org
• "Harkin's Rise Gives Labor a Boost" -- Kiplinger's

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In today's New York Times, labor reporter Steven Greenhouse has a piece compiling comment from various recent interviews with prominent American labor leaders on the status of the Employee Free Choice Act. 

From a talk with AFL-CIO President John Sweeney:

In an interview, John J. Sweeney, the federation’s president, said he would accept a fast election campaign instead of card check because it would meet his goal of minimizing management interference during organizing drives.

Mr. Sweeney said he “could live with” fast or snap elections “as long as there is a fair process that protects workers against anti-union intimidation by employers and eliminates the threats to workers.”

Sweeney continued to state that he might find a secret ballot election held five to ten days after a petition an acceptable alternative:

“If modifying that in some way or another is going to bring some more votes for the bill, I think that’s worth it,” Mr. Sweeney said.

His expected successor, Secretary-Treasurer Richard Trumka was less emphatic about the specific alternative proposal, but...

...said the A.F.L.-C.I.O. wanted to make sure that any legislation contained three components: a process in which workers were free of intimidation; greater penalties against employers that break the law during organizing drives, for instance by firing outspoken union supporters; and binding arbitration to prevent employers from indefinitely dragging out negotiations without ever reaching a contract.

Finally, union lobbyist David Bonior of American Rights At Work echoed Mr. Sweeney's remarks:

“The first preference for everybody in labor is the original bill,” he said. “And if we preserve the principles of the original bill and there are some changes — and if we can get 80 to 90 percent of what we started with — I think people would move forward on that.”

Perhaps the most interesting part of the piece involves the issue of the effort's timing:

Mr. Sweeney said President Obama had assured labor that as soon as health care legislation was passed — if it was passed — he would work with labor and the Democrats to pass the pro-union legislation, known as the Employee Free Choice Act.

Mr. Sweeney voiced optimism that the bill would pass.

“It’s going to be this year,” he said.

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