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

The subscription-based BNA Daily Labor Report notes today that attorneys for the National Labor Relations Board and New Process Steel LP have submitted their supplemental briefs to the U.S. Supreme Court addressing the affect of the recent NLRB recess appointments on the pending case challenging the authority of a two-member Board to issue rulings. 

The case, New Process Steel v. NLRB, U.S., No. 08-1457, was argued before the Court on May 23, 2010, four days before President Obama made two recess appointments.  On April 16, 2010, the Court ordered supplemental briefing on the impact of those recess appointments.

The NLRB's website has posted a special page for materials related to the case, but has not yet included the most recent filings.  SCOTUS Blog, however, has a summary of the arguments and links to the documents filed: 

Solicitor General Elena Kagan, in her new brief, laid out a potentially chaotic situation if the membership issue is not resolved.  Somewhere near 700 other cases have been decided by only two members, and the Board insists that it is entitled to have its rulings in those cases enforced in court.   Some 500 cases have not even been challenged in court yet, Kagan added.   And, she said, it is unclear — until the Court resolves the issue — whether the Board legally could re-ratify all of the previously decided cases in one grand order.

Moreover, both Kagan and the lawyers for New Process Steel noted the difficulties the Board has had in achieving full membership in recent years, and suggested that it might resort to two-member decisions in the future if that situation arises again.

Whether the Court agrees with the lawyers that the case remains a live controversy is unclear at this point, but that seems very likely to be its reaction.  A case argued as recently as late March, however, is not likely to be decided for several more weeks.  With the completion of oral arguments in pending cases, as of Wednesday, the Court will then begin a push to decide all of the remaining argued cases before recessing for the summer in late June or early July.

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Politico's Ben Smith on AFL-CIO President Richard Trumka today:

AFL-CIO President said the Employee Free Choice Act, which had apparently been left for dead by congressional Democrats, remains a top priority of the federation.

The AFL removed a giant EFCA banner from its Washington headquarters today, prompting speculation of a quiet concession of defeat.

"It was just starting to rip," he said. "We'll put up another one. We're still working hard."

"We'll find something to tack it on," he said (of the legislation, not the banner).

Trumka also said he was optimistic that incoming SEIU President Mary Kay Henry would bring that giant union back into the AFL-CIO.

"Obviously, the door is open. I think she has shown an interest in it," he said, adding that he hadn't spoken to Henry since she consolidated internal SEIU support. "She has said and her supporters have said they're tired of being isolated."

"You had six leaders at the international level who tried an experiment that obviously didn't work, and now it's time to bring everybody back," he said of the breakaway Change to Win group.

More coverage:

• "Card Check: And The Wall Posters Came Tumbling Down" (photos) -- ShopFloor.org
• @WorkforceFrdm Twitter feed

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The newly-constituted Board issued its third decision yesterday in what appears to be a fairly unremarkable case involving Hospital San Carlos, Inc., 355 NLRB No. 26 (Apr. 28, 2010).  The case -- which is the first decision by the new Board addressing unfair labor practice allegations against an employer --  involved a dispute over the amount of a Christmas bonus.  Puerto Rico law requires certain employers to pay eligible employees a Christmas bonus pursuant to a statutory formula.  The collective bargaining agreement at issue in the case included a provision for a bonus that “includes and is not in addition to the one established by law.”  The only difference in the contractual bonus and the statutory entitlement was the maximum wage on which the statutory percentage was applied.  The employer applied for and received a “partial exoneration” of the statutory bonus requirement from the Puerto Rico Department of Labor and Human Resources, which is authorized to waive or reduce the statutory obligation in certain circumstances.  As a result of this, the employer paid only the reduced bonus and not the amount called for by the contractual formula.  The Board ruled that the contract created obligations over and above the statutory requirement and that the employer had unlawfully made a change in terms and conditions of employment without bargaining with the union.

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American Enterprise Institute has issued a policy paper by UCLA Economics Professor Lee Ohanian entitled "The Impact of the Employee Free Choice Act on the U.S. Economy."   From the Professor's summary:

Gauging the impact of higher unionization on the economy, however, depends on how many more workers are unionized, how much their wages rise as a consequence of unionization and how this additional unionization indirectly impacts other aspects of the economy. To address these issues, I consider different assumptions regarding the number of new union members resulting from the passage of EFCA and different assumptions regarding how much their average wages would rise. I estimate that the impact of EFCA could reduce both the number of jobs and our gross domestic product by close to 4 percent under the assumption that unionization rates return to their levels in the 1970s, and these losses would persist for as long as unionization rates remained high.

Moreover, I find that job loss resulting from EFCA will fall disproportionately on workers with relatively low levels of education and skills. Ironically, it is these individuals that EFCA is specifically intended to help whom I find would be most negatively impacted by the proposed legislation. There are alternative policies that can promote wage growth for lower-skilled workers that are more efficient than unionization, including subsidies for education and job training. For example, each year, 10 million workers could receive $5,000 per year in training and education subsidies, which is only 1/10 of the possible cost of EFCA under the assumption that unionization rates return to their 1970s levels.

Read the entire report here.

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National Journal reports on last night's debate between Senator Blanche Lincoln (D-AR) and her primary challenger Lt. Gov. Bill Halter (D-AR):

Halter went on offense first against Lincoln during a question about the Employee Free Choice Act, which is often referred to as "card check." He mentioned that she first sponsored EFCA, then opposed it and then "signaled" to Senate leadership that she would filibuster such a bill. Halter stressed that he would support what he's heard about a compromise unionization bill being worked on by Sen. Mark Pryor (D-AR) and that the original EFCA draft is a non-starter even among union leadership now.

That set up Lincoln for an easy body blow on Halter, saying, that she appreciated he "has seen that compromise because most senators haven't seen that compromise." She later added bluntly, "I don't support card check," saying that it "creates unfortunate divisions" though she did not offer specific details. Instead, Lincoln said more focus should be paid to the economy.

Elsewhere, the Times-Picayune (La.) recounts a recent meeting between Sen. Mary Landrieu (D-LA) and the Louisiana Restaurant Association, primarily about healthcare reform, but apparently covering other issues like EFCA:

[Association President James] Funk said he left the meeting delighted by word from Landrieu that she felt that the Employee Free Choice Act, also known as "card check," which is backed by labor unions to facilitate organizing efforts, was not going anywhere this Congress and "she hasn't signed on as a co-sponsor. We were very, very pleased."

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Henry to lead SEIU:  Politico's Ben Smith reports on the surprising elevation to SEIU President of California nurses leader Mary Kay Henry over Andy Stern protege Anna Burger.  The move "turn[s] the giant union away from the Washington-based political and policy engagement that made it a major ally of the Democratic Party...."    Regarding the impact of her election:

Henry remains a largely unknown quantity on the national political scene, and some officials predicted that she would allow power to return from the Washington headquarters to scattered local unions; others suggested she'd emerge as a charismatic, central figure in Stern's tradition.

NLRB This Week:  Early in the week, the National Labor Relations Board issued its second decision since the President's recess appointments.  In International Union of Operating Engineers, Local 513, AFL-CIO (Ozark Constructors LLC), 355 NLRB No. 25 (Apr. 19, 2010), the Board held that an IUOE Local violated Section 8(b)(1)(A) of the Act by imposing a $2,500 fine on a member for reporting safety hazzards as required by a collective-bargaining agreement.

Toward the end of the week, the Board issued a press release announcing that Hugo Boss and Workers United/SEIU had reached a collective bargaining agreement which would keep the employer's Brooklyn, Ohio plant open.  Another release announced that a representation election will be held at University of Chicago Medical Center to resolve a disputed claim of representation between two rival nursing unions.

EFCA in Arkansas Dem Primary Debates:  National Journal reports on last night's debate between Senator Blanche Lincoln (D-AR) and her primary challenger Lt. Gov. Bill Halter (D-AR):

Halter went on offense first against Lincoln during a question about the Employee Free Choice Act, which is often referred to as "card check." He mentioned that she first sponsored EFCA, then opposed it and then "signaled" to Senate leadership that she would filibuster such a bill. Halter stressed that he would support what he's heard about a compromise unionization bill being worked on by Sen. Mark Pryor (D-AR) and that the original EFCA draft is a non-starter even among union leadership now.

That set up Lincoln for an easy body blow on Halter, saying, that she appreciated he "has seen that compromise because most senators haven't seen that compromise." She later added bluntly, "I don't support card check," saying that it "creates unfortunate divisions" though she did not offer specific details. Instead, Lincoln said more focus should be paid to the economy.

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According to the White House press office, President Obama yesterday once again submitted the nominations of Craig Becker and Mark Gaston Pearce to the Senate for confirmation as National Labor Relations Board Members.  The submissions expressly mention the recent recess appointment of the two.  The nominations list December 16, 2014 as the expiration date for Becker's term; and, August 27, 2013, for Pearce.

As with those recent recess appointments, the President declined to re-submit the name of his Republican nominee Brian Hayes.  HIstorically, the Board is composed of two Members from each political party, and a fifth Member from the President's party.  After the recent recess appointments, there are currently three Democrats and one Republican sitting on the Board, with one vacancy remaining. 

The term of the sole Republican on the Board expires in August of 2010.  As we approach that time, look for these re-submitted nominations to be joined with a re-submitted Hayes nomination, and the nomination of an additional Republican, as part of a compromise package to try to secure Senate confirmation of all of them.

(Hat Tip: Heather M. Doucet)

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Following Andy Stern's surprising announcement that he would step down as President of SEIU, his protege, Secretary-Treasurer Anna Burger and California-based labor leader, Mary Kay Henry seek to succeed him.  This weekend, in a memorandum to the union's International Executive Board, Ms. Burger laid out her vision for the priorities she would have the union pursue.  Listed within the first:

Use smart strategies to push the labor‐friendly majority on the NLRB to level the playing field and make it easier to organize through regulation and reconciliation to make quick elections and first contract arbitration the law of the land.

And finally we must face up to the challenge of rebuilding our ability to win traditional NLRB organizing campaigns, as well as exploring new models for organizing the private/private sector where millions of workers, not dependent on shrinking public dollars live on poverty wages in SEIU strongholds.

The first point is likely to raise eyebrows among EFCA-watchers who have recently heard mixed, but generally negative, assessments of the bill's current prospects.

The second point is perhaps more interesting.  A few years ago, when EFCA, card-check/neutrality and corporate campaigns seemed ascendant, the rejection of traditional organizing methods was a primary pillar in the SEIU's break from the AFL-CIO and formation of Change to Win.  This endorsement of a renewed commitment to NLRB processes by the SEIU's probable future leader -- obviously now that there is a former SEIU attorney sitting on the Board -- is notable indeed.

Cross-posted at LaborRelationsToday

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Following Andy Stern's surprising announcement that he would step down as President of SEIU, his protege, Secretary-Treasurer Anna Burger and California-based labor leader, Mary Kay Henry seek to succeed him.  This weekend, in a memorandum to the union's International Executive Board, Ms. Burger laid out her vision for the priorities she would have the union pursue.  Listed within the first:

Use smart strategies to push the labor‐friendly majority on the NLRB to level the playing field and make it easier to organize through regulation and reconciliation to make quick elections and first contract arbitration the law of the land.

And finally we must face up to the challenge of rebuilding our ability to win traditional NLRB organizing campaigns, as well as exploring new models for organizing the private/private sector where millions of workers, not dependent on shrinking public dollars live on poverty wages in SEIU strongholds.

The first point is likely to raise eyebrows among EFCA-watchers who have recently heard mixed, but generally negative, assessments of the bill's current prospects.

The second point is perhaps more interesting.  A few years ago, when EFCA, card-check/neutrality and corporate campaigns seemed ascendant, the rejection of traditional organizing methods was a primary pillar in the SEIU's break from the AFL-CIO and formation of Change to Win.  This endorsement of a renewed commitment to NLRB processes by the SEIU's probable future leader -- obviously now that there is a former SEIU attorney sitting on the Board -- is notable indeed.

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Last week the final rule was published regarding President Obama's Executive Order 13502 which allows agencies to require participation in a Project Labor Agreement (PLA) as a condition of bid solicitations on "large-scale" construction projects.   Yesterday, Government Executive reported that Senator Susan Collins (R-ME) recently criticized these developments as changing the government's federal procurement policy from "neutral" on union issues to one that is "pro-labor.":

"When it comes to spending taxpayer money, the decisions should always be based on the best value possible," Collins said. "Such decisions should not be driven by partisanship, politics or other agendas. With this change ... the administration has eliminated the practice of awarding contracts based on an objective assessment that puts the taxpayers' interests first."

  *  *  *

"This is one more example where the administration is taking a position that creates barriers for small businesses and blocks the participation of entrepreneurial startup companies," Collins said.

The article provides additional comment from Jim Elmer, national chairman of Associated Builders and Contractors; Jared Bernstein, chief economic adviser to Vice President Joe Biden; and, Secretary of Labor Hilda Solis.  Our initial analysis of the Order and Rule can be found here.

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On March 23, 2010, the U.S. Supreme Court heard oral argument in New Process Steel v. NLRB, Case No. 08-1547.  The issue is whether the National Labor Relations Board was acting within its authority when it issued numerous decisions during the recent twenty-eight month period where only two Members sat on the Board.  

On March 27, 2010, President Obama filled two of the three vacant Board seats by making recess appointments, thus restoring a three-Member quorum.  SCOTUSblog reports that on March 29, U.S. Solicitor General Elena Kagan advised the Court of this development.  Late last Friday, the Court ordered the parties to file new briefs addressing the impact of these appointments on the case before the Court.  Briefs are due April 26, 2010.

In the meantime, as we noted last week, the newly constituted Board has begun its work, issuing its first three-Member decision in years.

(Hat tip: Workplace Prof Blog)

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Following on our earlier post on the FAR amendments regarding the use of Project Labor Agreements on "large-scale" construction porjects, here are some additional resources and commentary on the issue:

• "Project Labor Agreements: A Better Deal For All" -- The White House Middle Class Task Force
• Government Neutrality in Contracting Act (H.R. 983, S. 90)
• The Associated Builders and Contractors' (ABC) TheTruthAboutPLAs.com 
• "Final Rule Issued on Obama PLA Executive Order" -- AFL-CIO Building & Construction Trades Dept.
• "The Final Rule on Project Labor Agreements" -- NAM's ShopFloor.org 
• "The United States is the New Europe" -- RealClearMarkets

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On February 6, 2009, President Obama signed Executive Order 13502 allowing federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract. (See MLA Government Contracts Advisory, “President Obama Signs Executive Order Allowing Agencies to Require Project Labor Agreements (PLA’s) on Large Construction Projects,” Feb. 10, 2009.)  On April 13, 2010, the Federal Acquisition Regulation council (FAR) published final rules interpreting and implementing the Executive Order. The rules will become effective 30 days after their publication and will only apply to solicitations for projects issued on or after the effective date of the rules.

A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site. The rules make clear that, in accordance with Section 8(f) of the National Labor Relations Act, the PLA requirement will only apply to contracts involving construction work.  Construction is defined to include “construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.”  Moreover, the Order and rules apply primarily to “large scale” construction projects -- which they define as projects with a total cost exceeding $25 million.

It is important to clarify that the new rules do not require contractors and subcontractors to enter into a PLA on every large-scale government-funded construction project awarded. Instead, they give each agency responsible for awarding construction contracts very broad discretion in determining, on a project-by-project basis, which large-scale contracts will require PLA’s and which ones will not. Beyond the few express criteria listed in the Executive Order, the final rules provide awarding agencies with six additional factors they may consider in determining whether a PLA requirement is appropriate.  These additional non-mandatory factors are:

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For approximately twenty-eight months, beginning in December 2007, only two of the five seats on the National Labor Relations Board were filled.  On March 23, 2010, the United States Supreme Court heard oral argument in New Process Steel v. National Labor Relations Board, Case 08-1547, regarding the issue of whether the Board could so function.  Subsequently, on March 27, 2010, President Obama filled two of the vacancies with the recess appointments of Craig Becker and Mark Gaston Pearce.

Today, for the first time in over two years, a three-member panel of the National Labor Relations Board issued a decision.  Chairwoman Liebman, Member Schaumber and Member Pearce issued a unanimous Decision and Determination of Dispute in the matter of Electrical Workers Local 71 (Capital Electric Line Builders, Inc.), 355 NLRB No. 24 (April 16, 2010).  In the case, the Board found that there was a jurisdictional dispute, within the meaning of Section 10(k) of the National Labor Relations Act, between IBEW Local 71 and Laborers Local 534, arising out of work in Butler County, Ohio.  Applying fairly settled standards, the Board awarded the work in dispute to the IBEW.

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The Hill's Blog Briefing Room today reports that Sen. Claire McCaskill (D-Mo.) has told local Missouri journalists that the Employee Free Choice Act is unlikely to be addressed in the Senate in 2010: 

"I don't think that card check is going to come up," McCaskill said during a weekly conference call with Missouri journalists. "It has not come up, and believe me: if card check, the way it was drafted, was going to come up, it probably would have come up early in 2009 as opposed to now."

McCaskill further restated, as has long been suspected, that the "card check" provision is unlikely to be included in any eventual labor law reform proposal:

"I think there's a lot of negotiation that's going on about card check," McCaskill said. "Businesses are at the table, and frankly I don't think the card checking part is the part that's being discussed at this point; I think that's been abandoned."

This sets the table for an interesting dilemma in the House.  SEIU President Andy Stern has consistently called for an up or down vote on a bill containing card check -- in part to put legislators on record heading into elections.   But late last year, Speaker Nancy Pelosi (D-CA) announced that the House would not act before the Senate on controversial measures in 2010.

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The Hill's Blog Briefing Room today reports that Sen. Claire McCaskill (D-Mo.) has told local Missouri journalists that the Employee Free Choice Act is unlikely to be addressed in the Senate in 2010: 

"I don't think that card check is going to come up," McCaskill said during a weekly conference call with Missouri journalists. "It has not come up, and believe me: if card check, the way it was drafted, was going to come up, it probably would have come up early in 2009 as opposed to now."

McCaskill further restated, as has long been suspected, that the "card check" provision is unlikely to be included in any eventual labor law reform proposal:

"I think there's a lot of negotiation that's going on about card check," McCaskill said. "Businesses are at the table, and frankly I don't think the card checking part is the part that's being discussed at this point; I think that's been abandoned."

This sets the table for an interesting dilemma in the House.  SEIU President Andy Stern has consistently called for an up or down vote on a bill containing card check -- in part to put legislators on record heading into elections.   But late last year, Speaker Nancy Pelosi (D-CA) announced that the House would not act before the Senate on controversial measures in 2010.

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At FireDogLake, Jane Hamsher asks "What Happened to the Employee Free Choice Act?"  Her post is her view of the recent political history of the legislative proposal.  Her introduction provides some summary:

The fate of  the Employee Free Choice Act (EFCA) over the course of the past year and a half has been largely determined by the White House.  Rahm Emanuel would not let it come up for a vote until after health care was passed, and by that time the Democrats no longer had 60 votes in the Senate.  But its evolution is also intimately tied to the electoral prospects of Harry Reid and Arlen Specter, and unless you understand one, you can’t understand the other.

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At FireDogLake, Jane Hamsher asks "What Happened to the Employee Free Choice Act?"  Her post is her view of the recent political history of the legislative proposal.  Her introduction provides some summary:

The fate of  the Employee Free Choice Act (EFCA) over the course of the past year and a half has been largely determined by the White House.  Rahm Emanuel would not let it come up for a vote until after health care was passed, and by that time the Democrats no longer had 60 votes in the Senate.  But its evolution is also intimately tied to the electoral prospects of Harry Reid and Arlen Specter, and unless you understand one, you can’t understand the other.

Hamsher recounts Senator Reid's (D-NV) absolute need for the support of the Culinary Workers Union for his 2010 re-election effort, and Senator Specter's (D-PA) September 2009 courtship of the AFL-CIO with his pseudo-announcement of "compromise" legislation.  But, she references AFL-CIO President Richard Trumka's previous report that the White House intervened to stall any legislative action on EFCA until after the healthcare reform debate.  

And then Sen. Scott  Brown (R-MA) won the special election and slammed the door on EFCA's prospects to pass a cloture motion.  Her conclusion:

Some have argued that the unions were wrong to back off of EFCA and work on health care.  But union members overwhelmingly wanted health care reform more than they wanted EFCA.  Nonetheless, the unions did everything they could to pass it, and if the White House had pulled out all the stops for EFCA that they did on health care, it no doubt would have.

Thanks to Rahm’s determination to stop a vote before health care, the only chance to pass the Employee Free Choice Act was in the spring, when health care was in its infancy. With Arlen Specter’s foot dragging, Rahm and the White House had the perfect excuse to delay a vote until it was too late.  

 Not a terribly confident view of the bill's future prospects.

Cross-Posted at LaborRelationsToday.com

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ShopFloor.org reports on NLRB Chairwoman Wilma Liebman's remarks yesterday at the annual Hunter College national conference on collective bargaining in higher education.  As also noted in BNA’s Daily Labor Report (subscription needed), Liebman said she suspects the Board will operate "under continuing scrutiny and controversy.”  From NAM's post:

She further explained that while the board will seek a “more dynamic” reading of the National Labor Relations Act than the “static” approach of the Bush years, it would be unrealistic to expect “fundamental, wholesale, or radical change.”

But in her remarks the Chair notes that decisions by the Obama board, she said, will seek “a more dynamic interpretation of the statute,” looking at real-world impacts, needs, and facts, “not just the words of the law.”

ShopFloor includes analysis from others (including yours truly)...

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Politico's Ben Smith tonight reports that Andy Sterm, President of Service Employees International Union (SEIU), one of the most powerful labor leaders and political figures in America, is resigning:

The President of an SEIU local based in Seattle, Diane Sosne, broke the news to her staffers at 11:35 this morning, local time.

"Last night I received confirmation that Andy Stern is resigning as President of SEIU. He has not yet made a public announcement; we will share the details as we become aware of them," Sosne wrote in an email obtained by POLITICO.

Sosne offered no explanation for the move, but another SEIU official speculated that Stern had finally tired of the draining job.

"Health care getting done is a good culmination," the official said.

Stern's SEIU and President Obama have a longstanding political relationship, and it was widely reported late in 2009 that Stern was the most frequent visitor to the White House during the President's first year in office.  Stern drove hard behind the recent health care reform act and the push to hold legislators accountable for their positions on the Employee Free Choice Act.  Speculation will swirl until Mr. Stern himself addresses his departure from the most politically connected labor union in the U.S.   [UPDATE: HuffPo's Sam Stein tweets: "SEIU spokesperson Michelle Ringuette: ".Stern will address these rumors at the close of the SEIU Executive Committee meeting this week."]  But without a doubt, what he does next will likely be as significant to the American labor movement as what he has done to date.

More commentary and coverage:

• "Andy Stern to Resign as SEIU President" -- The Atlantic
• "SEIU Official: Andy Stern to Resign" -- The Daily Caller
• "Report: Andy Stern to Resign" -- Time Magazine's The Page
• "Andy Stern Leaving SEIU, Sources Confirm" -- The Huffington Post

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Politico's Ben Smith tonight reports that Andy Stern, President of Service Employees International Union (SEIU), one of the most powerful labor leaders and political figures in America, is resigning:

The President of an SEIU local based in Seattle, Diane Sosne, broke the news to her staffers at 11:35 this morning, local time.

"Last night I received confirmation that Andy Stern is resigning as President of SEIU. He has not yet made a public announcement; we will share the details as we become aware of them," Sosne wrote in an email obtained by POLITICO.

Sosne offered no explanation for the move, but another SEIU official speculated that Stern had finally tired of the draining job.

"Health care getting done is a good culmination," the official said.

Stern's SEIU and President Obama have a longstanding political relationship, and it was widely reported late in 2009 that Stern was the most frequent visitor to the White House during the President's first year in office.  Stern drove hard behind the recent health care reform act and the push to hold legislators accountable for their positions on the Employee Free Choice Act.  Speculation will swirl until Mr. Stern himself addresses his departure from the most politically connected labor union in the U.S.  [UPDATE: HuffPo's Sam Stein tweets: "SEIU spokesperson Michelle Ringuette: ".Stern will address these rumors at the close of the SEIU Executive Committee meeting this week."]  But without a doubt, what he does next will likely be as significant to the American labor movement as what he has done to date.

More commentary and coverage:

• "Andy Stern to Resign as SEIU President" -- The Atlantic
• "SEIU Official: Andy Stern to Resign" -- The Daily Caller
• "Report: Andy Stern to Resign" -- Time Magazine's The Page
• "Andy Stern Leaving SEIU, Sources Confirm" -- The Huffington Post

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ShopFloor.org today highlights a Pittsburgh Tribune piece about the Pennsylvania AFL-CIO convention entitled: "BIg Dem majorities in Congress in doubt as AFL-CIO meets."  NAM's take on the labor leaders' current strategy: "Take what you can get when you can get it."  When it comes to the Employee Free Choice Act, and the rest of organized labor's agenda, NAM notes:

As Congress and the White House seek to appease their political allies in labor before the midterm elections, employers should remain vigilant. Labor’s policy agenda will not necessarily come in the form of legislation. 

We agree that there are now several ways by which labor law reform is likely to be attempted in the near future, as we noted in our inaugural post Friday.  But it seems that EFCA's proponents are not giving up on the legislation either.  Elsewhere in the Trib piece, the author highlights how labor unions are channeling their frustration back into electoral politics for the 2010 cycle:

"We had a couple of conservative Democrats that were the same conservative Democrats that cause problems on health care," said United Steelworkers International President Leo Gerard. He singled out Sens. Blanche Lincoln of Arkansas, Bill Nelson of Nebraska and Mary Landrieu of Louisiana.

They and other conservative Democrats helped give the party its majority, but unions, frustrated with votes against labor priorities, are pulling support from them even if they're in tough re-election contests against Republicans, Gerard said.

Likewise, Politico, the Plumline, the Daily Caller, and MSNBC's Chuck Todd are all reporting that the Service Employees International Union (SEIU) is working to form a new political party in North Carolina to promote candidates more supportive of labor's agenda.  From Politico:

About 100 canvassers have been trying to collect the requisite signatures for the past two weeks to gain ballot access for the new party, which would be called North Carolina First. SEIU spokeswoman Lori Lodes said their primary focus was to officially register the party, but noted that the union was beginning conversations with possible candidates who could run under the party’s banner.

• Cross-Posted at Labor Relations Today

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ShopFloor.org today highlights a Pittsburgh Tribune piece about the Pennsylvania AFL-CIO convention entitled: "BIg Dem majorities in Congress in doubt as AFL-CIO meets."  NAM's take on the labor leaders' current strategy: "Take what you can get when you can get it."  When it comes to the Employee Free Choice Act, and the rest of organized labor's agenda, NAM notes:

As Congress and the White House seek to appease their political allies in labor before the midterm elections, employers should remain vigilant. Labor’s policy agenda will not necessarily come in the form of legislation. 

We agree that there are now several ways by which labor law reform is likely to be attempted in the near future, as we noted in our inaugural post Friday.  But it seems that EFCA's proponents are not giving up on the legislation either.  Elsewhere in the Trib piece, the author highlights how labor unions are channeling their frustration back into electoral politics for the 2010 cycle:

"We had a couple of conservative Democrats that were the same conservative Democrats that cause problems on health care," said United Steelworkers International President Leo Gerard. He singled out Sens. Blanche Lincoln of Arkansas, Bill Nelson of Nebraska and Mary Landrieu of Louisiana.

They and other conservative Democrats helped give the party its majority, but unions, frustrated with votes against labor priorities, are pulling support from them even if they're in tough re-election contests against Republicans, Gerard said.

Likewise, Politico, the Plumline, the Daily Caller, and MSNBC's Chuck Todd are all reporting that the Service Employees International Union (SEIU) is working to form a new political party in North Carolina to promote candidates more supportive of labor's agenda.  From Politico:

About 100 canvassers have been trying to collect the requisite signatures for the past two weeks to gain ballot access for the new party, which would be called North Carolina First. SEIU spokeswoman Lori Lodes said their primary focus was to officially register the party, but noted that the union was beginning conversations with possible candidates who could run under the party’s banner.

• Cross-Posted at EFCA Report

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The Labor & Employment Team at McKenna Long & Aldridge LLP is launching Labor Relations Today, a blog providing analysis, resources and commentary regarding current and emerging issues in labor and employment law. Led by MLA partners Richard B. Hankins and Seth H. Borden, the authors of EFCA Report, the new blog seeks to become the leading online community for tracking the key legislative, executive and administrative regulatory developments that will significantly impact how employers interact with their employees and labor unions.

As we have tried to do with our coverage of the Employee Free Choice Act here, we hope to keep our readers ahead of the curve with insights on traditional labor law, and the effect of changes being considered and implemented by the 111th Congress and the Obama administration.  We anticipate that the next few years will be a dynamic time in American labor law.  At LRT, we will endeavor to keep our clients and employers in general up to speed on developments as they happen -- if not sooner.

Please visit the new blog and subscribe there for updates. Alternatively, you can follow Labor Relations Today on LinkedIn, Facebook and/or Twitter. Thank you for your continued readership.

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Union-side labor attorneys Craig Becker and Mark Gaston Pearce were sworn in on Wednesday, April 7, 2010, as Members of the National Labor Relations Board. Messrs. Becker and Pearce, Democrats, were the subjects of controversial recess appointments by President Obama on Saturday, March 27, 2010. They join Democrat Chairwoman Wilma Liebman and Republican Member Peter Schaumber to bring the Board within one Member of its full five Member capacity. President Obama previously nominated Republican Brian Hayes to be the fifth Member, but declined to appoint him with the others. This leaves the Board tilted disproportionately 3-1 in favor of Democrats, ensuring a Democrat majority on all panels hearing cases.

What should employers expect? With all the commotion surrounding the recess appointments, and the Obama administration’s likely preference to negotiate Senate approval of all three nominees for full-terms, the Board may continue to avoid taking controversial actions for the immediate time-being. However, in time, employers are likely to note a significant shift in NLRB activity in favor of employees and organized labor’s positions. Members Becker and Pearce join Chairwoman Liebman as a majority bloc distinctly in favor of expanding the rights of unions and workers. This Board is certain to reverse several precedents set by the Bush administration's Board.

As we noted in a July 2009 Client Alert (“What to Expect from President Obama’s Labor Board”), employers wondering what Board positions might be vulnerable to reversal should look to the many NLRB decisions issued during September 2007. Issued in the closing weeks of then Chairman Battista's term, many of these decisions split as 3-2 votes. Each modified existing Board law, and each contained a strong dissent by the current Chairwoman. They provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board. Chairwoman Liebman testified at one such hearing, and has reiterated her views consistently many times since.

Among the issues likely to be revisited are those addressed in the following September 2007 cases:

• Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), wherein the Board modified its recognition-bar doctrine. The Board held that an employer’s voluntary recognition of a union bargaining representative will not bar the processing of a decertification petition filed during the first 45 days after recognition.
• Toering Electric Co., 351 NLRB No. 18 (Sept. 29, 2007), wherein the Board significantly altered its standards in “salting” cases. Salting occurs when a union organizer seeks employment at an employer solely for the purpose of organizing the other employees and obtaining recognition of the union. This practice is lawful and previously “salts” were protected by the NLRA, but in Toering, the Board held that individuals who do not genuinely seek an employment relationship do not qualify as “employees” protected by the Act.
• Jones Plastic & Engineering, 351 NLRB No. 11 (Sept. 27, 2007), wherein the Board clarified that advising strike replacement workers that they are employed “at-will” does not undermine their status as permanent replacements, entitled to continued employment at the conclusion of a strike. A previous Board case, Target Rock, 324 NLRB 373 (1997), had suggested otherwise.
• BE&K Construction Co., 351 NLRB No. 29 (Sept. 29, 2007), wherein the Board held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act. BE&K confirmed that this is the case even if the employer’s motive for bringing the suit is to retaliate against a union, and even if the suit is ultimately dismissed.

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The Hill declares "Sen. Specter viewed as a model Democrat one year after switch":

“He’s a very effective negotiator,” said Bill Samuel, legislative director of the AFL-CIO. “He played a very helpful role, as I understand it, in the internal conversations of the Democratic caucus on the Employee Free Choice Act and helped move it forward with a number of moderates.”

Specter’s work earned him the endorsement of the Pennsylvania AFL-CIO, a valuable imprimatur in Democratic primaries. He won the endorsement with 79 percent of the union’s vote, which aides points to as a sign that he is winning acceptance among the Democratic rank and file. The union was a key backer for Specter during his 2004 reelection campaign, when he was still a Republican.

DailyKos is firing up its 2010 Orange to Blue political fundraising effort, selecting candidates, in part, on the basis of their response to a questionnaire.  The second question (of seven):

Do you support the Employee Free Choice Act (H.R. 1409/S. 560), including the provision known as "card check"?

Marquette Law School student Jeffrey Dill will argue in the Tennessee Journal of Business Law that EFCA is an inadequate cure to the decline in unionization, and that access to employer property is necessary:

Unions have lost the once strong position they held in the American workplace. Academics have long debated how to restore the National Labor Relations Act’s relevance in today’s global marketplace. Congress’s preferred solution seems to be the Employee Free Choice Act, which would reform the unionization voting process, but this proposal does not strike at the heart of the matter. Labor is losing the debate on the benefits of unionization for the average worker because it is operating on an uneven playing field where employers can exert undue influence on employees to prevent them from organizing with no real opportunity for nonemployee union representatives to respond. True reform must focus on the ability of union representatives to access employer property, which is currently governed by the Supreme Court’s decision in Lechmere v. NLRB.

And the TruthAboutEFCA blog has a reading round-up of its own.

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