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

The Senate Health, Education, Labor & Pensions (HELP) Committee is scheduled for an executive session tomorrow to consider pending nominations by the President.  The Hill reports today, however,  that a spokeswoman for HELP Committee Chairman Tom Harkin (D-Iowa) said the Committee will not be considering the re-nomination of Craig Becker to the NLRB this week.  Nonetheless, business groups continue to ramp up their opposition to the nomination:

“Yes, we will absolutely oppose the Becker nomination,” said Jade West, senior vice president of government relations for the National Association of Wholesaler-Distributors (NAW). “The NLRB, under the leadership of Becker, could implement the Employee Free Choice Act by fiat.”

The National Association of Manufactures (NAM) also sent a letter to the chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee opposing the nomination.

The Chamber, NAW and NAM were part of a 23-business coalition that wrote to senators last October to oppose Becker’s nomination.

Union lawyers have dismissed the business groups’ concerns in the past, saying such a board ruling would come under heavy legal challenge and only legislation changing labor law would allow the card-check process to take place.

Other commentators sympathetic to labor, however, are less dismissive.  In the Huffington Post's coverage of the nomination debate, Dmitri Iglitzin and Steven Hill write:

To understand what is at stake, it's necessary to understand the potential power of the NLRB, a little-known administrative agency with broad authority over labor matters. The president appoints and the Senate confirms members to this body, and an NLRB on which Obama appointees constitute a majority could overturn a number of key decisions issued by the Bush administration-appointed board. Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:

* drastically shorten the time frame for holding union elections;

* eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;

* require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;

* require equal access to both workers and the workplace for unions during campaigns; and

* increase the penalties on companies that violate their workers' legal rights.

The NLRB even could make it easier for workers to unionize based on a card check showing of majority support--just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as a neutral third party verified that more than 50 percent of those employees had signed a written statement expressing a desire to be represented by that union. That's a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers who threaten retaliation against their workers.

Other commentary on the issue:

• "It's All Academic: Profs Push NLRB Nomination" -- TheTruthAboutEFCA
• "66 Academics to the Senate: Confirm Craig Becker to the NLRB Now" - FireDogLake
• Previous EFCAReport coverage here.

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The National Association of Manufacturers (NAM) has sent a letter to the Senate Committee on Health, Education, Labor & Pensions (HELP) opposing the re-nomination of SEIU Associate General Counsel Craig Becker to the National Labor Relations Board (NLRB).  President Obama re-nominated Becker recently after his nomination was returned from the Senate in late 2009.  Among NAM's many concerns about the nomination is the prospect that, following a legislative failure to enact EFCA, Mr. Becker may pursue its goals via the Board's administrative mechanisms:

Mr. Becker’s views indicate that he believes the NLRB has the authority to make certain decisions that are pending in proposed legislation. Such positions include redefining the supervisory status of frontline supervisors in order to place such employees into labor union bargaining units with other eligible employees.  Mr. Becker has written extensively and positively about how the NLRB could rewrite current union election rules in favor of union organizers, a decision that should be left to Congress. We are particularly concerned that if confirmed, Mr. Becker would seek to advance aspects of the jobs-killing Employee Free Choice Act through actions of the NLRB.

Both NAM and the U.S. Chamber of Commerce have requested Committee hearings on the nomination.

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Former Rep. Harold Ford, Jr. (D-TN), who is rumored to be weighing a Senate run in New York, has penned an Op-Ed in today's New York Times, prodding Democrats to "Get Down To Business."  In the wake of Senator-Elect Scott Brown's victory in Massachusetts, as well as the Republican gubernatorial wins in New Jersey and Virginia earlier this year, Mr. Ford asserts the Democratic party needs to redirect its focus "toward a bold effort to create jobs, improve the economy and rein in the size of government."  He believes:

America’s primary job-creating machine — the private sector — needs to be rejuvenated. Democrats must lead now on job creation or risk forfeiting Congressional majorities in November.

In an interview on a similar theme with the Wall Street Journal last week, regarding the Employee Free Choice Act, Ford was blunt :

Asked if pending legislation that imposes compulsory union arbitration on employers would help lower the unemployment rate, Mr. Ford says it won't. "And card check"—as the bill is known—"should not be the focus right now. If that's at the top of the agenda, we're not going to move forward on a job-creation agenda. I do support the unions in this country. And I support the right to organize. But I don't believe that this is the right time to advance card-check legislation." 

(h/t: WorkforceFrdm's Twitter feed)

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The Hill's Kevin Bogardus reports that organized labor will continue to campaign for the Employee Free Choice Act despite the election of Scott Brown (R-MA) to the Senate.  Thursday, Bill Samuel, director of government affairs for the AFL-CIO, admitted that the election changed the dynamic in the Senate:  

“We are obviously reevaluating our strategy,” Samuel said on a conference call with reporters. “We have no intention of backing off that commitment.”
 

Bogardus aptly notes what many commentators are missing in this discussion: "Even when Democrats had a super-majority in the Senate though, labor groups were finding it difficult to round up enough votes to move forward with EFCA, which would make union organizing much easier."  There were many Democrat Senators who were consistently opposed to the legislation as introduced.  Samuel seems to concede that Brown’s election makes it that much more complicated. 

Asked if the AFL-CIO would reach out to Brown, who has been viewed as somewhat centrist in the Massachusetts State Senate: 

“We really don’t know the answer to that,” Samuel said, adding he would be happy to talk to Brown about the bill. “We have had a number of conversations with moderates and we will continue to do so.”

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Providing its analysis of the earlier WSJ piece, NAM's ShopFloor.org incorporates insight from other sources as well, and concludes:

And if the legislative path is blocked, there’s always the regulatory/administrative approach. As we’ve noted previously, one of President Obama’s nominees to the National Labor Relations Board is Craig Becker, an SEIU counsel who contends the NLRB can prevent employer involvement when a union seeks to organize the business. Becker is a fervent supporter of the Employee Free Choice Act and card check’s elimination of secret ballot elections.

Among the notable quotables highlighted by ShopFloor:

• Workforce Management:

“It’s kind of now or never for them,” said Brett McMahon, vice president of Miller & Long, a concrete subcontractor and a member of Associated Builders and Contractors. “If the chances are [lower] now to get something done, they may become truly impossible in the next Congress.”

• The Nation:

The battle over nominations to the NLRB, even more than EFCA, may be what really determines the extent of labor’s gains under Obama. Should Obama persevere and see his nominations confirmed, there is reason to believe that much of what organized labor hopes to accomplish via EFCA will be realized through the rule-making power of the NLRB.

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Thursday's Wall Street Journal reported that labor leaders met by phone to assess the impact of Wednesday's election in Massachusetts.   The loss of the crucial 60th Democratic vote in the Senate and another major election cycle in 2010 are certain to affect Labor's legislative agenda, including its pursuit of the Employee Free Choice Act:

Tuesday's win by Republican Scott Brown in Massachusetts dealt a blow to labor's multiyear, multimillion dollar effort to put Democrats in the majority of the House and Senate. Labor officials viewed the 60-vote Democratic majority in the Senate as essential for passing the organizing bill, which would benefit unions by shortening the time period before union-organizing elections, mandating arbitration of first contracts and boosting penalties for employers who violate labor laws.

The bill was already on shaky ground, due to strong opposition from business, Republicans and some moderate Democrats. Now some labor officials believe it's doomed.

The article contains comment from IAM President Thomas Buffenbarger, AFSCME President Gerald McEntee, and AFL-CIO officials.  Amongst the most noteworthy, this remark by Buffenbarger:

Mr. Buffenbarger said he hoped Tuesday's election would benefit unions in one way, by leading Congress to enact a jobs bill that could include pro-labor provisions, such as requirements that the government purchase items from American companies, including defense concerns where his union represents workers. "The lesson I hope the party takes is what this union has been yelling about for the last three years, jobs," he said.

The White House has been eager to use other regulatory methods to facilitate union organizing, dating back to its earliest Executive Orders almost one year ago.  As a Senator in the 110th Congress, President Obama was one of three co-sponsors of the Patriot Employers Act (S. 1945) which would have provided tax benefits for American employers who met a number of requirements, including observing "neutrality" during employee organizing drives.  The prospect that elements of EFCA find their way into other legislative, administrative or executive vehicles is very real if the legislature concludes that 2010 is not the time to pursue the bill.

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Bloomberg News reports:

One part of the health-care legislation that would help control costs is a tax on so-called Cadillac insurance plans that is part of the Senate bill, she said.

As one way to pay for the changes, the Senate would impose a 40 percent tax on employer-provided insurance plans that exceed $8,500 for individuals and $23,000 for families, with higher allowances for retirees and workers in high-risk professions such as mining and firefighting.

Obama “has been convinced by experts across the ideological spectrum that this is one of those things that genuinely slows the growth rate of costs,” Romer said. “Anybody that’s worried about the budget deficit knows that we’ve got to do that.”

“The important thing is the incentive it provides to genuinely slow the growth of our costs,” she said. “We certainly have looked very hard at the CBO estimates and think they are very reasonable.”

Labor leaders, including AFL-CIO labor federation President Richard Trumka and Service Employees International Union President Andy Stern, are scheduled to meet with Obama tomorrow to discuss the tax.

One may wonder what other legislative issues might come up in discussion...

(Hat Tip:  NAM's Twitter Feed)

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In yesterday's Roll Call (subscription), communications consultant Bret Jacobson wrote about how the resumption of the push for EFCA may play out in the current political landscape -- and in advance of 2010 mid-term elections:  

For its part, Big Labor is signaling a demand for action on EFCA. Steve Rosenthal, a top strategist for organized labor, has argued in print that Democrats need to take action to motivate union grass-roots activists for the election and to pass the bill to “energize the union apparatus.”

How many moderate Democrats want to actually energize the labor “apparatus” is up for debate, but the importance of EFCA is not. The president of the Service Employees International Union has suggested the bill could add 1 million to 1.5 million members per year to his union. And the head of the Teamsters estimated that the bill could double his rolls. One estimate put the monetary value of the bill for unions at $35 billion. The head of the American Federation of State, County and Municipal Employees blatantly admitted EFCA would be the payback for political support in 2008.

The problem for Democrats, though, is that while EFCA is the top priority for their top special interest group, it’s not for most of their constituents. 

Jacobson concludes that a full-frontal push for EFCA will benefit the Republicans politically.  The ongoing negotiations to reconcile the pending healthcare legislation will probably continue to provide insight into how the next big legislative debate will unfold.

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