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

Last week, National Labor Relations Board Acting General Counsel Lafe Solomon issued a second report summarizing cases involving social media issues reviewed by his office. The report is a sequel to a similar report issued by the AGC in August 2011 – around the time we contributed a chapter on the subject to Jon Hyman’s excellent compilation “Think Before You Click: Strategies for Managing Social Media in the Workplace”. General Counsel Memorandum OM 12-31 (January 24, 2012) addresses fourteen (14) recent cases. 

The press release announcing the report reiterates two points made in the earlier survey:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The Memorandum reports on these cases without any identifying information – party names, case numbers, locations, etc. – which somewhat limits its utility. This is especially so as the AGC concedes “that these cases are extremely fact-specific.”

 

The aforementioned Jon Hyman sees the report overall as “a mess.” He notes particular overreach in the Board’s treatment of an employer trying to assure employees, beyond any reasonable doubt, that its policy would not infringe upon rights protected by the NLRA:

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

Of Jon’s other conclusions, I agree most with #2 and #4. I think that what we are seeing is not so much a conscious decision by the Board to over-regulate employer response to social media communication, but rather the natural extension of the current Board’s efforts to broaden the scope of employee and union rights under the Act. The Board majority’s expansions of “concerted” activity (Parexel International LLC, 356 NLRB No. 82 (Jan. 28, 2011), “reasonable construction” in the context of the Lutheran Heritage Village-Livonia test, and the range of inflammatory conduct which will retain its protection, are woven both expressly and implicitly throughout the reasoning explained in this report. These developments will continue to have impact on all types of employer work rules and policies – not only social media policies.

 

But social media remains the “hot topic,” as the report puts it.  Three social media cases are currently pending before the Board:  

• Hispanics United of Buffalo, Case No. 3-CA-27872 (ALJ, September 2, 2011): The ALJ  ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance. The ALJ held that “[e]xplicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.” Moreover, the ALJ agreed with the General Counsel that the various Facebook postings at issue did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.
• Karl Knauz BMW, Case No. 13-CA-46452 (ALJ, September 28, 2011): The Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act.  The ALJ also held, however, that the employee's termination was lawful because the social media postings for which he was fired did not constitute protected activity
• Triple Play Sports Bar, Case No. 34-CA- 12915 (ALJ, January 3, 2012): The Judge found that the employer unlawfully terminated two employees for participation in a Facebook conversation regarding their employer’s wittholding of taxes. The ALJ held that one employee’s endorsement of a wall post via the “Like” annotation and another employee’s singular use of a profane epithet toward the employer occurred amid a discussion of their tax treatment, and were thus protected.

Check back for additional information about these cases as they proceed.

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The Department of Defense, General Services Administration, and NASA have published a Final Rule in the Federal Register to implement Executive Order 13494, "Economy in Government Contracting."  The Order, one of three Executive Orders issued by President Obama on January 30, 2009 regarding labor relations, declared the costs of any activities undertaken by federal contractors to persuade employees to choose or decline union representation to be ineligible for government reimbursement.  Following review of public comments, the agencies finalized the April 14, 2010 proposed rule with "just one minor editorial change" to FAR 31.205-21, the cost principle addressing labor relations costs:

To implement the requirements of the E.O., DoD, GSA, and  NASA issued a proposed rule that would amend this cost principle by adding a new paragraph addressing the handling of persuader activities--that is, activity involving the persuading of employees to exercise or not exercise their rights to organize and bargain collectively. By doing so, the proposed rule differentiated the handling of costs incurred through persuader activities, which are unallowable, from those incurred in maintaining satisfactory labor relations, which remain allowable.

In our February 2, 2009 Advisory on the President's early set of Executive Orders, among other things, we noted: 

 

In 2000, the State of California passed Assembly Bill 1889, which placed similar restrictions on the use of State funds by contractors to promote or deter union organizing by employees. The California bill was expressly intended to advance the state’s policy of not “interfer[ing] with an employee’s choice about whether to be represented by a labor union.”4 Last year, in Chamber of Commerce of United States v. Brown, 554 U.S. __, No. 06-939 (June 19, 2008), the United States Supreme Court struck down AB 1889, ruling that the provision unlawfully sought to “regulate within ‘a zone protected and reserved for market freedom.’” Slip Op., at 4-5. The Court stressed that the addition of Section 8(c) of the National Labor Relations Act by the 1947 Taft-Hartley Act was intended to protect non-coercive, non-threatening speech for all parties in the context of union organizing:

From one vantage, §8(c) merely implements the First Amendment... in that it responded to particular constitutional rulings of the NLRB...But its enactment also manifested a “congressional intent to encourage free debate on issues dividing labor and management.”... It is indicative of how important Congress deemed such “free debate“ that Congress amended the NLRA rather than leaving to the courts the task of correcting the NLRB’s decisions on a case-by-case basis. We have characterized this policy judgment, which suffuses the NLRA as a whole, as “favoring uninhibited, robust, and wide-open debate in labor disputes,” stressing that “freewheeling use of the written and spoken word…has been expressly fostered by congress and approved by the NLRB." Letter Carriers v. Austin, 418 U.S. 264, 272-273 (1974)

 

It is clear from its express text that the White House has attempted to design this Order to avoid the issues which compelled the Supreme Court’s decision in Brown. The language of the Order’s policy statement and title -- attempting to frame the federal government as a market participant and not a regulator -- and the explicit protection of activity for which no reimbursement is sought are directly intended to bolster arguments the Supreme Court found lacking when advanced by the State of California in Brown. The ordered rules and regulations, yet to be developed by the FAR Council, may provide additional basis for challenge of this Order. In the meantime, however, federal contractors are faced with the prospect of accounting practices and procedures which clearly separate costs for communication with their employees in any matters arguably related to rights protected by the National Labor Relations Act.

The Final Rule published on November 2, 2011, reiterates this point expressly:

This rule does not prohibit or otherwise regulate persuader activities; it only disallows the reimbursement of the costs of these activities under Federal contracts. The purpose of the rule is to promote economy and efficiency in Government contracting by excluding certain costs from reimbursement by the Government that are not directly related to the contractors' provision of goods and services to the Government. By doing so, the rule promotes the fiscally responsible handling of taxpayer funds. The State law at issue in Brown was rooted in ``California's policy judgment that partisan employer speech necessarily interferes with an employee's choice about whether to join or to be represented by a union.'' 554 U.S. at 69 (internal quotation omitted). By contrast here, neither the E.O. nor the rule in any way restrict the manner in which recipients of Federal funds may expend funds they receive from the Government or any other of their own funds, including funds a recipient received as a Government contractor for providing goods and services under Federal contracts.

But it undeniably adds risk and real administrative and bookkeeping burdens on contractors who wish to exercise their rights protected under the National Labor Relations Act and First Amendment to talk to their employees about union representation.  Contractors who do business with the federal government would be wise to revisit these issues, to review the Final Rule and to consider how they intend to ensure compliance.

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The House Committee on Education and the Workforce passed a bill yesterday that would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer a business. The Protecting Jobs from Government Interference Act (H.R. 2587), introduced by Rep. Tim Scott (R-SC), is aimed, in part, at stopping the NLRB from proceeding with its complaint against the Boeing Co.  According to the WSJ's Melanie Trottman:

The bill passed the House Education and the Workforce Committee on a 23-16 party-line vote, But it’s unclear when the full House might consider it, and it’s not likely to pass the Democratic-controlled Senate.

Republicans say the NLRB, an independent government agency that’s controlled by Obama administration appointees, has gone too far and needs to be stopped with legislation.

“Republicans refuse to allow federal bureaucrats to reverse the business decisions of employers,” Committee Chairman John Kline (R., Minn.) said at the committee meeting Thursday. The bill, he said, “takes a critical step to provide employers with the certainty they need to put Americans back to work, right here at home.”

Committee Ranking Member Rep. George Miller denounced the effort in a statement, calling it "a very reckless and partisan bill to destroy workers' rights."

More information and commentary:

• "House Republicans advance bill to curb authority of labor relations board" -- The Hill
• "Panel approves Scott's bill: Measure would strip some power from NLRB, which has sued Boeing over new 787 plant" -- Post and Courier
• "NLRB General Counsel defiant as subpoena showdown looms" -- In These Times
• "House Republicans put Boeing over workers rights in bill to cripple NLRB" -- AFL-CIO Now blog
• "On party line, House panel OK's bill to curb NLRB" -- Washington Times

 

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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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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 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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For the better part of the past twenty-eight months NLRB Member Peter Schaumber has worked with Chairman Wilma Liebman while the National Labor Relations Board has been operating with only two of its five positions filled.  This week, the U.S. Supreme Court heard oral argument in New Process Steel v. NLRB, Docket No. 08-1457, to pass upon the issue of whether the hundreds of decisions handed down by the two-member Board are legitimate. 

Last week, we attended a breakfast hosted by the Atlanta Bar Association Labor & Employment Section, at which Member Schaumber spoke about the two-member issue.  In his remarks, Member Schaumber indicated that he and Chairman LIebman had handed down approximately 600 decisions since December 2007.  While a majority of them are now beyond the compliance stage, he indicated that the Supreme Court's decision may impact approximately 80-100 cases -- most of which involve employer challenges.  Member Schaumber would not comment on whether the Board had a plan to deal with these cases if the Supreme Court invalidates the two-member Board decisions.   

Today, the NLRB issued a press release reiterating some of Member Schaumber's remarks at the ABA Labor & Employment Law Section's Mid-Winter Meeting on March 3 in Puerto Rico.  At that conference, Member Schaumber indicated his concern with “the possibility of an upcoming wholesale reversal of Bush Board precedent,” which could “reignite and intensify the negative view of the NLRB as mired in partisanship.”

We've previously outlined a number of the most obvious decisions on which a fully-constituted Liebman Board is likely to reverse course.  Many question whether we are only a few days away from that full Board, as President Obama may well be considering making recess appointments during the congressional recess beginning this weekend.

Member Schaumber suggested labor law reforms intended to mitigate the view of partisanship and the frequency of precedent reversal during successive Presidential administrations:

He said U.S. labor laws are in need of reform but suggested changes that are not now being discussed, “from the manner in which Board members are selected to the possible role of work councils to whether consideration should be given to abolishing the Board all together in favor of a Federal labor and employment court with judges appointed for life.”

While these notions have not gathered much traction in the discussion about reforming American labor law -- in part, because there has been no discussion -- Senator Arlen Specter posed similar questions in his 2007 Harvard Journal of Legislation Policy Essay:

Has the Board appropriately balanced a sparing use of rulemaking authority and heavy reliance on adjudication?  Would the Board gain legitimacy if Board Members were more insulated from the political appointment process, perhaps through longer terms or a different appointment process? What other institutional reforms would both encourage and empower Members to act more like judges and less like political appointees? 

 

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As the Senate Recess begins, observers continue to speculate whether President Obama will use recess appointments to place nominee Craig Becker on the National Labor Relations Board.  Last week, Becker's nomination stalled in the Senate when a motion for cloture failed 52-33.  Later in the week, the President strongly suggested that he would not be using recess appointments at this time.  In an opinion piece in today's Politico, University of Texas Professor William E. Forbath asserts that Becker should be confirmed:

Cautious Democrats are urging the White House against making a recess appointment of Craig Becker to the National Labor Relations Board. But these timid Democrats are wrong.

Many argue that the fallout from a Becker appointment would be self-defeating for labor because it would end any chance of getting the Employee Free Choice Act through the Senate. But the EFCA died when Sen. Scott Brown (R-Mass.) took his seat, if it wasn’t dead already. The EFCA won’t pass unless and until the filibuster rules are changed. And then, the Becker appointment won’t matter.

At Human Events, the Heritage Foundation's Brian Darling argues against the use of recess appointments:

A recess appointment can be made to put a nominee into a position temporarily, usually for a year or so, when the Senate is out of session. Many Democrat Leaders in the Senate vigorously opposed President George W. Bush’s use of recess appointments, but now support Obama’s stated intent to use recess appointment authority.

One of the questionable nominees is Craig Becker (for the National Labor Relations Board). Becker was blocked last week by the Senate because many are concerned about his views on the Executive Branch’s power to implement big labor’s agenda without legislation. 

But as noted above, over the weekend, Sam Stein reported in the Huffington Post that the President would not appoint Becker by recess appointment:

Among those on the losing end of the deal struck between Obama and Senate Minority Leader Mitch McConnell (R-Ky.) are labor unions.  Craig Becker, the president's nominee for the National Labor Relations Board who was filibustered by the Senate this past week, will not get the recess appointment next week that union officials were hoping. Instead, his nomination is either dead or put on hold until the next Senate recess at the end of March.

Elsewhere in the Huffington Post, Bill Lucey had a great piece chronicling the historical use of recess appointments by Presidents, "Examining the 'Recess of the Senate'".

More on this issue:

• "White House: No Recess Appointments During Next Week's Break" -- ShopFloor.org
• "Obama’s Love of Labor Makes for One Unholy Union: Kevin Hassett" -- BusinessWeek
• "Recess Posting Possible" -- Wall Street Journal

 

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The Senate has posted the roll call on the Becker cloture vote here. 

Let the political speculation begin.  What impact did the snow and the shutdown have?  What impact did Senator Nelson's proclamation have on participation?

These Senators did not cast a vote:

Brownback (R-KS) Byrd (D-WV) DeMint (R-SC) Ensign (R-NV) Graham (R-SC)

Gregg (R-NH) Hatch (R-UT) Hutchison (R-TX) Inouye (D-HI) Landrieu (D-LA)

Pryor (D-AR) Roberts (R-KS) Sanders (I-VT) Thune (R-SD) Vitter (R-LA)

Perhaps notably, Senators Landrieu (D-LA) and Pryor (D-AR) did not vote.  Their names are often mentioned as Dem dissenters on EFCA.  This list is certain to be dissected by the punditry and interest groups in days to come.

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In advance of a probable filibuster (with growing support) over Craig Becker's nomination to the National Labor Relations Board, Glen Spencer of the U.S. Chamber's Workforce Freedom Initiative and former Clinton-Gore advisor Peter Mirijanian swapped commentary on Fox News earlier today:

The anchor led with the angle that concerns have been raised about Mr. Becker's ability to implement elements of EFCA via administrative action. Challenged by the anchor, Mr. Spencer conceded "it would be difficult to get some of the ideas in the card check bill through administratively, but there's no question, I think, that Mr. Becker would try." In a wide-ranging defense of Mr. Becker's nomination, Mr. Mirijanian dismissed opposition as "politics" and suggested that Mr. Becker would not be able to impose EFCA by "administrative fiat."

As of right now, weather permitting, the Senate intends to take up the vote at around 5 p.m. today.

More commentary:

• "Nelson Joins GOP In Opposition to Obama Nominee" -- CNN Political Ticker
• "Senate Dem Nelson Joins Republican Filibsuter Against Obama's NLRB Choice" -- AFL-CIO blog
• "Ben Nelson to Filibuster Key Obama Labor Nominee" -- Huffington Post
• "Sen. Nelson (D-NE) Will Vote Against Cloture on Becker" -- ShopFloor.org
• "With Nelson, GOP Blocks Obama Labor Board Nominee" -- ABC News
• "Senate Votes Today On SEIU Lawyer For NLRB" -- Human Events
• "Blue Dogs Running For Cover Over NLRB Nominee" -- American Thinker

 

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Politico reports Monday night that Sen. Ben Nelson (D-Neb.) will support a Republican-led filibuster over President Barack Obama's nomination of Craig Becker to serve on the National Labor Relations Board:

“Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the administration,” Nelson said in a statement. “This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand."

We have previously posted on concerns expressed by many that Mr. Becker might seek to implement elements of EFCA via Board decisions and/or rulemaking.  Tonight's Politico piece notes another EFCA connection:

Republicans have tried to make Becker's nomination a referendum on the Employee Free Choice Act, which would make it easier to unionize. In his statement, Nelson said Becker has made several statements that "fly in the face of Nebraska’s Right to Work laws."

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As prospects for Senate passage of the Employee Free Choice Act, in its current form, have waned, observers have turned their attention to alternative ways in which the bill's components might be implemented.  The possibility attracting the most commentary lately has been the prospect of a new National Labor Relations Board majority, sympathetic to organized labor, using its administrative authority to enforce elements of EFCA. 

A piece in yesterday's Las Vegas Sun, however, suggests another possibility -- that some aspects of EFCA might be tucked into the Obama administration's "jobs bill" currently being developed by the Senate:

On labor law, Bill Samuel, the AFL-CIO’s legislative director, said the union would try to enlist moderate Republicans but acknowledged the difficulty of achieving a bipartisan bill. He said the federation might consider “other tactics,” meaning the card-check legislation or key parts of it could be placed into a larger jobs bill this year.

Democrat Sen. Tom Harkin of Iowa, chairman of the Senate Labor Committee, suggested that was the bill’s fate. “Maybe it won’t be card check,” he said, referring to the full bill. “But there are some things we need to do to straighten out the process for (union) elections and certification and first contract.”

Given the apparent unpopularity of card check among current Republican and moderate Democratic Senators, it is hard to see how adding those provisions advances a jobs bill purportedly intended to have bipartisan support.   We suppose we will see whether any of EFCA's other provisions find their way into the jobs bill when it is introduced -- perhaps as early as this week, weather permitting.

More commentary:

• "Jobs Bill Could Contain Card Check" -- Hot Air
• "U.S. Chamber Chief Warns Against Attaching EFCA to Jobs Bill" -- Workforce Management
• "Obama May Try To Get Card Check Through In Jobs Bill" -- Credibly Connect

 

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Back in August, AFL-CIO President (then Treasurer-Secretary) Richard Trumka told a webchat audience that efforts to pass the Employee Free Choice Act would probably not advance any further until after Congress was through with healthcare reform.  As the debate over the healthcare legislation soldiers on, Tuesday's Politico noted "For labor, there's always next year":

To be sure, health care reform has been a goal of union leaders for a long time, and they are still working with Congress to win passage. But labor’s top priority — passage of the Employee Free Choice Act — was in trouble almost the moment the Democrats were sworn in, stalled by the unexpectedly long effort to fill their filibuster-proof Senate roster.

 

First, labor advocates had to wait until the contested Senate race in Minnesota was settled and Democrat Al Franken was seated. Then the death of Sen. Ted Kennedy (D-Mass.) caused further delay.

 

Backers of the bill are hoping it will re-emerge as a congressional priority once health care moves from center stage. But even then, it’s unclear whether Sen. Tom Harkin (D-Iowa) has been able to hash out language acceptable to the moderates and conservatives in his caucus — a task made all the more difficult by the looming midterm elections.

 

Still, labor advocates remain hopeful.

There has been nothing reported about specific conversations on alternative approaches to the bill since September, but President Trumka remains committed to resuming the push in 2010, as he expressed during another webchat on Tuesday.

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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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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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Today's ChamberPost blog quotes Roll Call regarding the possibility of a troubling Democratic legislative strategy in the Senate on EFCA:

As Senate Democrats struggle to hammer out a compromise bill on union organizing, Majority Leader Harry Reid (D-Nev.) is sketching a process for railroading the bill through the floor as quickly as possible to prevent Republicans from rallying a major campaign against it, senior Democratic aides said...Cutting off debate on the bill would likely ignite a major partisan firestorm, and top Democrats will look to make their move as fast as possible, according to the Democratic aides. "This is not the kind of thing where we could have a long, drawn-out rollout. We'd have to say, 'Here's the deal,' and then get to the floor and get it passed before anyone can mobilize against it," one leadership aide said.

Ironic -- or disturbingly appropriate?  EFCA proponents disallowing the stakeholders (legislators) in a vote ample time to consider and debate the merits of a decision on legislation designed to disallow stakeholders (employees) in a vote ample time to consider and debate the merits of a decision on unionization.  Setting aside the particular elements of EFCA itself, this should be considered a troubling development in terms of our democratic (little "d") legislative process.

Regrettably, some of us expressed concern about this prospect some time ago: "'Workplace Democracy' Should Not Be Decided Behind Closed Doors."

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Today's Atlanta Business Chronicle contains a piece on EFCA suggesting "Revision may speed passage of union bill" (subscription).  McKenna Long & Aldridge partner and EFCA Report blogger Richard Hankins is quoted throughout, including the following passages:

The first major development on the proposal in months occurred when moderate Democrats in the Senate this month decided to drop the bill’s so-called “card-check” provision allowing unions to organize at a work site as soon as a majority of workers signed a card saying they wanted a union. The card check essentially would have replaced secret-ballot union elections.

For months, business groups assailed the provision as an affront to the liberties of American workers, and it became a lightning rod for criticism not only among congressional Republicans but moderate Democrats.

Even though Democrats now hold a 60-40 advantage in the Senate, the card-check threatened the bill’s chances of passage, said Richard Hankins, a partner in the Atlanta office of McKenna Long & Aldridge LLP who specializes in labor relations.

“This compromise is to get past a filibuster,” he said.

And, echoing an earlier blog post here:

“What if we had to vote on our political leaders with five days’ notice?” Hankins said. “Many employees are simply not going to know ... anything about the union or its effect on their jobs.”

Finally, regarding the ultimate fate of the bill:

Hankins said getting rid of card check makes it more likely that the Employee Free Choice Act will clear the Senate.

But he said the more liberal House of Representatives probably still will pass the original version of the bill, with the card-check provision intact, leaving the measure’s final fate up to a joint House-Senate conference committee.

“The concern is that card check would come back at that point and work its way into law,” he said.

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The recent suggestions that Senators may jettison card-check, or “majority sign up” (or whatever we’re supposed to call it these days) from the Employee Free Choice Act comes with word that it may be replaced by a mandate that elections be held within five or ten days of the date a petition is filed. Criticism of EFCA seemed immediately to shift to the interest arbitration provisions, but this notion of quick elections warrants further examination. We offer the following general observation, in no particular order:

 

1. Imagine if the President of the United States had the power to just announce on any given day that there would be an election in five days and that the people would be bound by the results for the next four years. Citizens would be outraged because there would not be ample opportunity to learn about the candidates and examine their platforms. Under the reported EFCA compromise, a labor union would be able to choose the date on which the petition is filed after collecting signed authorization cards from just 30% of the workforce. In the words of Nathan Newman, Policy Director for Progressive States Network: “Union secretly collects cards, announces them and calls a snap election for five days later.”  Up to 70% of the workforce would have to make a decision within five days whether to give a labor organization they may never even have heard of the right to become their exclusive workplace representative. The interest arbitration provisions of EFCA would likely forbid any decertification for at least two years.

2. U.S. employment law typically encourages providing employees with information about their rights. Our friend Dan Schwartz at Connecticut Employment Law Blog has been reporting on the Equal Employment Opportunity Commission’s recent guidance on separation and severance agreements. In that guidance, the EEOC notes that the validity of a waiver of rights under anti-discrimination laws will turn on:

• whether [an agreement] was written in a manner that was clear and specific enough for the employee to understand based on his education and business experience;
• whether it was induced by fraud, duress, undue influence, or other improper conduct by the employer;
• whether the employee had enough time to read and think about the advantages and disadvantages of the agreement before signing it; [and]
• whether the employee consulted with an attorney or was encouraged or discouraged by the employer from doing so.

In fact, for a waiver of age discrimination claims to be valid, the employee must be given at  least twenty-one days to consider the agreement (or at least forty-five days in the case of an exit incentive or other group termination program) and then must be given seven days within which to revoke the agreement after signing it. Does it really make sense to force an employee to decide whether to waive the right to self-representation within five days?

3. While EFCA proponents would like the public to believe that employers create interminable delays in union elections, the truth is that in 2008, the National Labor Relations Board conducted initial elections in union representation elections in a median of thirty-eight days from the filing of the petition.   95.1% of all initial elections were conducted within fifty-six days of the filing of the petition. While there may be cases of abuse by some employers, we note that few governmental agencies operate with this level of efficiency. Current NLRB policy is to conduct elections within forty-two days of petition-filing. During that time period, the parties discuss, and litigate, if necessary, the scope of the eligible voting unit. This discussion period is important in order to avoid litigation. In 2008, 91.8% of all elections were conducted pursuant to election agreements reached without the need for litigation. In a five or ten day election cycle, all issues regarding the appropriate bargaining unit would have to be resolved after the election. This would likely increase the instances of litigation, as the party behind in the vote count would have no incentive to compromise.  It would create uncertainty in the workforce for a considerable amount of time after an election. And it would be a tremendous waste of government resources because the agency would likely have to invalidate numerous elections conducted in inappropriate units. 

Of course, the reported expedited election proposal is not really about giving workers the opportunity to make informed choices or to avoid litigation. It is, as Mr. Newman admits, about giving unions an opportunity to increase their membership though ambush and silencing opposing views.

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More following Friday's New York Times report that Senate Dems are considering dropping card-check from EFCA, but retaining the troubling mandatory interest arbitration provision. 

At Commentary, Jennifer Rubin continues her coverage of EFCA developments, expressing skepticism that any such "compromise" would fly: 

If there is such a deal, those Red state Democrats will be back on the hot seat. With unemployment heading for double-digits, will they vote for “card check lite”? So long as Big Labor is proposing that government-appointed arbitrators would have the power to set terms and conditions of employment for first labor agreements and that employers’ right to control their private property be sacrificed, you can expect a battle royale, including a filibuster from opponents.

Following up, at Slate, Mickey Kaus hits the nail on the head, laying out a critique of interest arbitration we included in our earlier white paper on EFCA:

Opponents may need to come up with a new name for the bill (though "card check" was working pretty well for them). How about "federal pay determination"?  Keep in mind that not only does the apparent "compromise" propose abandoning the hoary idea that wages should be set in the marketplace, it also abandons the New Deal's substitute idea that wages should be set in labor contest where unions threaten to use their strike power and management threatens to survive a strike. Unions seem to have given up strikes. Instead they want to authorize an official--maybe even an actual federal bureaucrat--to simply swoop down and impose what would undoubtedly be a wage increase. That's more akin to FDR's notorious, failed National Recovery Act--except the NRA at least let industries set their own rigid wage scales.  ...

Note also that the arbitration provisions give now-unorganized workers a new, powerful incentive to unionize: Vote for the union, wait a few months, and an arbitrator will fly in and give you a raise. No strike. No fuss. No muss.

Kaus includes a link to his April piece wherein he recommended that business and other opponents begin to think of their own elements for inclusion in any labor law reform bill.  Well worth repeated reads now.

Finally, at NAM's Shopfloor.org, Carter Wood articulates an interesting possibility:

Here’s a theory, admittedly paranoid and probably giving labor too much credit: The NYT story represents a two-part jujitsu strategy by labor. Labor claims outrage at this “compromise,” but the removal of card check prompts business to emphasize how toxic the binding arbitration provisions are. THEN, labor agrees to drop binding arbitration too, leaving business sputtering about how the remaining legislation is still bad but struggling to articulate why. With business politically neutered, the Senate passes a bill with ambush elections, a gag on employer involvement in the election process, and increased penalties. Unions still wind up with a new ability to intimidate employees into joining unions and an election process slanted toward labor.

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Today's New York Times reports that moderate Democrats have agreed to a "compromise" on the Employee Free Choice Act that they believe would garner the sixty votes needed to overcome a filibuster. The compromise would reportedly remove the card-check requirement from the bill and replace it with a requirement that elections be conducted within five to ten days after the NLRB receives a petition.

There is no word yet on when the revised measure would be formally considered, though the Times indicated that several other changes are still under consideration. Those changes include some form of union access to employer facilities and a ban on mandatory campaign meetings by employers.  Compulsory interest arbitration apparently would remain in the bill.

Senator Blanche Lincoln (D-AR) and Senator Arlen Specter (D-PA) are said to support the compromise language. This compromise is not likely to be welcomed by the business community. But it also seems to create numerous practical problems.  For example, any challenges to the propriety of a union petition would have to be resolved after employees vote.  This is likely to lead to an increase in such challenges and a great deal of uncertainty among workers.  Additionally, the compromise would require a massive overhaul of current NLRB procedures and staffing to accommodate the flurry of activity that must occur prior to an election being held. 

More to follow here (and via our Twitter feed) as this story develops.

Others following the story this morning:

• "Card Check: NYT Reports 'Compromise', i.e., Disguised Card Check" -- NAM's ShopFloor.org
• "AFL: Dropping Card Check is 'Normal Process'" -- Politico

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#EFCA  #efcafail

By some accounts, the most significant revision of U.S. labor policy in decades may be passed by the Senate after a backroom deal, with little, if any, formal debate.  

We’ve been blogging about EFCA since early 2007, and, while we make no pretense about our management bias, we’ve tried to maintain a civil tone.   We’ve reported developments and offerred insight, but we’ve tried not to be inflammatory. Enough people on both sides of the issue are working that angle. Pardon us then for this temporary departure from our usual form.

For months now, it has been assumed that even with sixty members in the Democratic caucus, the Employee Free Choice Act was doomed to fail in its original form.  The word from Washington has been that Sen. Tom Harkin (D-IA), Sen. Arlen Specter (D-PA), and others have been discussing "compromises" to the original bill.  Details about those discussions have been hard to come by.   Now that the sixtieth caucus member is about to be seated, we hear that a compromise is almost complete, and that the new bill may pass the Senate within a few days of being introduced. 

Does no one in Washington see the irony in a backroom deal on workplace democracy? Collective bargaining is supposed to be about giving workers a voice in things that affect them through representatives of their own choosing. Who is participating in these closed door meetings? How are the Senators ascertaining that the voices they hear are the true voices of workers? And what about the business community? Shouldn’t they have a voice in this legislation, which may or may not result in wages and benefits being dictated by an arbitrator? The Senate has long been hailed as the most deliberative legislative chamber. It should conduct those deliberations openly – especially on issues that purport to address workplace democracy.

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Both Sens. Arlen Specter (D-PA) and Dianne Feinstein (D-CA) have reportedly been considering a "mail-in" or "postcard" alternative to EFCA's card-check recognition scheme.  In the Oregonian, Coalition for a Democratic Workplace Chairman Brian Worth responds to an earlier piece in the paper regarding this alternative:

'Postcard check' scheme
 

There is no comparison between Oregon early voting and congressional efforts to find alternatives to the wildly unpopular card check scheme ("Mail voting proposed in union 'card check' fight," June 4).

The most important distinction is that there's no ballot involved in the mail-in
card proposal. It merely substitutes the discredited card check ruse with a "postcard check" -- a new and equally flawed variation. The postcard check proposal increases the power of the professional union organizer, eviscerates secret ballot elections and further weakens workers' privacy rights.

Like regular card check, mail-in cards do not provide the guaranteed security and privacy of a voting booth, thus inviting fraud, intimidation and coercion
with more visits to workers' homes by union organizers.

This latest attempt to fix what is wrong with the Employee Free Choice Act opens the door to abuse through ACORN-style campaigning that is prone to fraud and increases the possibility of worker intimidation and coercion. As National Labor Relations Board career staff noted, mail-in cards increase the "potential for interference by any party."

You can't fix card check by simply adding postage and this alternative further expands the attack on worker privacy from the workplace to the home.

BRIAN WORTH
Chairman
Coalition for a Democratic Workplace
Washington, DC
 

Hat Tip:  ShopFloor.org

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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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Longtime Republican Senator Arlen Specter (PA) announced today that he will run for re-election in 2010 as a Democrat.  Per the New York Times:

Mr. Specter, the long-time Republican party maverick, faced a difficult re-election next year, against conservative opponent Pat Toomey, the former Pennsylvania representative.

If Al Franken prevails in his ongoing court case in Minnesota and Mr. Specter begins caucusing with Democrats, Democrats would have 60 votes and the ability to deny Republicans the chance to stall legislation. Mr. Specter was one of only three Republicans to support President Obama’s economic recovery legislation.

Regular readers of this blog, and other followers of the Employee Free Choice Act, know well Senator Specter's critical role in the ongoing evolution of the proposed legislation.  In the last Congress, Specter was the only Republican to cross the aisle and vote for cloture on H.R. 800.  In his floor speech at the time, he outlined a number of his concerns about the current state of American labor law.  Soon after, in the summer of 2008, Senator Specter co-authored a Policy Essay in the Harvard Journal of Legislation, criticizing EFCA, but reiterating the need for substantive labor law reform.  Then, on March 24 of this year, Senator Specter took to the floor to announce that he was withdrawing his support for the bill.  In so doing, the Senator once again emphasized his opinion that significant alternative labor law reform was necessary:

If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.

He suggested a number of elements that might be considered in such an effort, and encouraged all parties to approach the issue seriously and constructively. 

So, what now for EFCA?   Senator Spector's March 24th announcement was seen as a roadblock to the 60 votes needed for cloture.  In concluding his statement issued today, Specter proclaimed:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees [sic] Free Choice (Card Check) will not change.

At first blush, it would seem that this move -- forseen by some for a while -- might not have immediate impact on EFCA's prospects.  Certainly there are enough other Democrats -- Sens. Lincoln, Feinstein, and Bennet to name a few -- who have expressed opposition to the bill following Specter's March 24th announcement.  And Senator Specter's critiques of the bill as currently drafted appear principled and longstanding.  But he also left the door open in his March 24th statement.  To be sure, today's announcement may have more impact on EFCA's prospects in the 112th Congress, should its proponents decide to regroup and wait.

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Roll Call today notes that organizations on both sides of the EFCA debate spent the recent congressional recess blanketing lawmakers’ districts with rallies, press ops, advertisements and phone calls.  Among those speaking out:

A coalition of minority business leaders — including the Asian American Hotel Owners Association; the National Association of Black Hotel Owners, Operators & Developers; the National Black Chamber of Commerce; the Latino Coalition; and the U.S. Hispanic Chamber of Commerce — held their own press conference Tuesday to continue lobbying against the card check bill.

“They want to come in and run your business for you and probably run it into the ground,” National Black Chamber of Commerce President Harry Alford said.

The Cleveland Plain Dealer reports that longtime EFCA advocate Sen. Sherrod Brown (D-OH) predicts revisions to the bill in the coming months:

Although Brown backs the legislation in its current form, he says it won't get enough votes for passage in the Senate now that former backers including Pennsylvania Republican Sen. Arlen Specter have withdrawn their support.

He said he expects a compromise will be reached to continue the secret-ballot elections, but require them to be conducted swiftly and handled in a way that doesn't inordinately favor businesses.

And Human Resources Executive Online carries a story regarding ongoing efforts toward the reunification of the AFL-CIO, Change to Win and the NEA into a single labor coalition:

Labor unions view the Obama administration as "representing the redefinition of the government's role," says Change to Win spokesman Greg Denier, adding that labor leaders are already uniting to work for the enactment of the Employee Free Choice Act.

 

Many believe a reunited labor movement would strengthen the unions' ability to work with the new administration and advance its agenda.  

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Three-thousand construction firms sent a letter to Congress yesterday, making clear where they stand on deliberation over the Employee Free Choice Act:

We, the more than 3,000 undersigned construction companies and related firms, are writing to express our strong opposition to the deceptively named “Employee Free Choice Act” (H.R.1409 and S.560). The key provisions in this legislation represent egregious attempts to limit the rights of employees and employers and will severely diminish the ability of our firms to succeed in our globally competitive market.

 

It is also our intention to make clear that there is no room for compromise on this piece of legislation. Our firms stand together in stating that there is nothing that can be done to make this legislation more palatable and that Congress should vote down this bill in all forms.

(Tip: ShopFloor.org)

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At the Enlightened Despot blog, Akhbar the Great cautions people against ignoring the full import of the Employee Free Choice Act, while getting caught up in rhetorical abbreviations.  AtG would not refer to EFCA simply as "card check":

And this isn’t just a technicality. Other countries have a card check policy, but they of course don’t have EFCA on the books - it’s a proposed American law. Meanwhile, EFCA contains a lot of significant measures unrelated to card check. Indeed, card check itself is becoming increasingly irrelevant - there is simply no reason to think Democrats can put together 60 Senate votes for any bill that includes it, at least not until after the 2010 midterms.

At this point, the policy to watch is mandatory binding arbitration. Mandatory binding arbitration would require management and a newly formed union to enter a binding arbitration process for a two-year contract if the two sides are unable to come to terms on their own. The major compromise bills that have been introduced contain neither mandatory arbitration nor card check, and are about as popular with labor as Japanese car companies. Meanwhile, anti-labor types are worried that Democrats are planning to drop card check as a compromise for enacting mandatory binding arbitration.

The Truth About the EFCA blog carries a Columbus Dispatch story which it asserts highlights the dangers of card-check organizing:

An Ohio union organizer has been fired after he was caught forging documents to deduct money from public employees' wages to pay for political activity, the Service Employees International Union said yesterday.

Becky Williams, president of the SEIU District 1199, said she thinks this is an isolated incident, but the union is continuing to investigate.

More:

• The American Spectator explores the impact of EFCA on the widely ignored current multi-employer pension crisis in "A Good Time to Start Liquidating"
• ShopFloor.org criticizes American Rights at Work for demonizing American industry instead of arguing the merits of EFCA
• The American Issues Project has audio from Gov. Mitt Romney's Monday call regarding mandatory interest arbitration.
• Construction exec Brett McMahon's recent op-ed piece is reprinted in today's Washington Examiner

 

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Finally, labor groups seem to be conceding that whatever labor law reform might be passed this year is unlikely to look like the Employee Free Choice Act repeatedly introduced during the past few Congresses.  Throughout the developments of the past few weeks, the AFL-CIO's Director of Legislative Strategy Bill Samuel remained insistent that card-check remain a critical part of any such effort, dismissing overtures to discuss alternative approaches.  But now, after Senators Arlen Specter (R-PA), Dianne Feinstein (D-CA) and Blanche Lincoln (D-AR) have all indicated they will not support EFCA as currently composed, it seems some in labor are also striking a more moderate tone.  From yesterday's National Journal:

Labor groups are showing a willingness to accept changes in the Employee Free Choice Act in the wake of opposition from senators considered key to passing the bill. "A bill is introduced and then Congress works through the process of committees, amendments, and debates and 99 out of 100 times the final bill is different from when it started," said Eddie Vale, a spokesman for the AFL-CIO. "We are confident that major labor law reform is going to pass in 2009." That sentiment was echoed by Josh Goldstein, a spokesman for the pro-labor American Rights at Work. "We have to let the legislative process play out; the bill has just been introduced," he said. "There are other proposals that have come up. We are fully committed to having those conversations with people who are committed to fixing the broken system."

 

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Although the AFL-CIO and supporters in Congress have repeatedly expressed confidence that they will have the votes to pass the Employee Free Choice Act, the AP reports:

Democratic leaders hinted Tuesday that compromise may be needed to get wavering lawmakers on board for a bill to make union organizing easier.

The Democrats insisted they are not losing support, but acknowledged that some changes might be needed.

The comments came as the Employee Free Choice Act was formally introduced in the House and Senate, intensifying the already heated debate between business groups that oppose the measure and labor groups that consider it their top priority.

Iowa Sen. Tom Harkin, a lead sponsor of the bill, said his colleagues are talking about "certain modifications," but no agreement has been reached.

With the threat of the filibuster firmly in place, EFCA proponents will likely need to consider significant modifications during the legislative process.  In the past, we have noted that key swing vote Senator Arlen Specter's (R-PA) Policy Essay in the Harvard Journal of Legislation identifies several potential elements of alternative approaches to labor law reform.  The MLA White Paper on EFCA also contains an overview of many of these and other similar elements.

Yesterday, Workplace Prof' Blog's Professor Jeffrey Hirsch also linked to an alternative labor law reform bill introduced by Rep. Joe Sestak (D-PA) -- 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.

Hirsch questions whether this proposal might also provide the basis for some legislative compromise.

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When EFCA was introduced in the last Congress, President Bush had vowed that he would have vetoed the bill. He never had to, as a Senate filibuster killed it well short of his desk.

H.R. 800 was introduced on February 5, 2007, by Rep. George Miller (D-CA). On March 1, 2007, after only two and one-half hours of debate, the House of Representatives passed EFCA by a vote of 241 - 185.  Thirteen Republicans voted in favor of the measure, while only two Democrats voted against it.

EFCA encountered an almost immediate “silent filibuster” in the Senate. The bill’s supporters were not able to secure the votes needed to end the filibuster, moving EFCA forward to the floor for an “up or down” vote on the bill itself. On June 26, 2007, the Motion to Invoke Cloture failed to garner the sixty (60) votes required. Every Democrat, except Sen. Tim Johnson (ND) who was unable to vote due to illness, voted for cloture. Every Republican, with the exception of Sen. Arlen Specter (PA), voted against cloture. The result was a 51-48 failure to end debate.

The 2008 election saw the Democratic caucus expand its majority in the House from 235 to 256 seats. Barring a significant re-thinking of the issue  -- by the newer “Blue Dog” faction of the caucus, for example -- EFCA is expected to pass easily when re-introduced in the House. 

Once again, the Senate is likely to prove the most important factor. The EFCA lobby’s ability to get the bill passed depends almost entirely on its ability to get sixty (60) votes to end a filibuster. There are some appointments and legal challenges still up in the air -- most notably the recount litigation in Minnesota. It appears likely, however, that as a result of the November elections, eight (8) Democrats will replace former Republican Senators who voted against cloture. If every single Senator who voted on the cloture motion in the 110th votes the same way in this Senate, the eight (8) new Democrats vote for cloture, and Sen. Johnson is able to cast his vote, that adds up precisely to the sixty (60) votes needed to bring EFCA to the floor of the Senate for a vote. It is safe to say with those numbers that ultimate passage would be highly likely. 

There is some question whether or not Senator Specter will break with the G.O.P. to cast the determinative vote. Sen. Specter has expressed a strong desire to see labor law reform addressed in this Congress. Yet he has been highly critical of EFCA (and the tenor of the related debate) in both his 2007 floor speech on the cloture motion and in a Policy Essay published in last Summer’s Harvard Policy on Legislation.

Moreover, the Democratic Senators from Arkansas -- Mark Pryor and Blanche Lincoln -- have both expressed varying degrees of doubt about the need for the legislation and suggested the possibility of some form of compromise. 

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