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

Politico's 44 blog quotes a piece by the Atlantic's Molly Ball, highlighting AFL-CIO President Richard Trumka's recent assertion that organized labor has not given up on the Employee Free Choice Act. Trumka tells Ball that the card-check legislation to facilitate private sector unionization will be enacted if President Obama is re-elected:

I note that Trumka hasn't mentioned card check, or as he prefers to call it, "labor law reform." But he denies the union has given up on that priority.

"Never. You'll see it," he says. "That's within the next term." How is that possible, without a Democratic House of Representatives or 60 votes in the Senate? Trumka smiles. His eyes twinkle.

"There's another election between now and then," he says. And the AFL-CIO isn't going anywhere.

It is hard to view Trumka's statement -- about a bill he didn't even think to bring up himself during a wide-raging interview about the 2012 election -- as anything more than a political rallying cry to his troops on the way to the polls. In 2008, then Senator Barack Obama (D-Ill.), an original co-sponsor of the Act, proclaimed:

We will pass the Employee Free Choice Act. It's not a matter of if—it's a matter of when. We may have to wait for the next President to sign it, but we will get this thing done.

Soon after "the next President" was elected, Democrats controlled both houses of Congress, including a Senate super-majority, and were unable to overcome bipartisan opposition to the bill. Labor leaders subsequently pushed a number of compromise efforts and alternative approaches -- none of which ultimately gained any traction. The Huffington Post's Sam Stein pointed out today on Twitter that Trumka's 2012 boast echoes similar predictions from cycles past -- most recently before the 2010 elections. But not only did all of the AFL-CIO's 2008-2010 political activity not succeed in passing EFCA in the 110th Congress, it helped elect the 111th -- in a wave election which created a significant Republican opposition in the House. Anything can happen in elections, but if 60 Senate seats and a House majority was not enough to pass EFCA in the 110th Congress, it is not very likely that the bill's prospects will fare much better in the 113th -- or even 114th.

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Former Senator Arlen Specter passed away on Sunday. Per the Washington Post:

For most of his 30 years as Pennsylvania’s longest-serving U.S. senator, Specter was a Republican, though often at odds with the GOP leadership. His breaks with his party were hardly a surprise: He had begun his political career as a Democrat and ended it as one, too.

Specter famously changed his party affiliation in 2010, after breaking ranks with the G.O.P. on the Stimulus, but he was then defeated in a Democratic primary. Throughout the legislative debate over the Employee Free Choice Act, Sen. Specter attempted to navigate a moderate position -- initially supporting the proposal, but ultimately casting the vote against cloture which effectively killed the bill in the 110th Congress. In a widely viewed statement on the Senate floor, Sen. Specter criticized what he perceived to be extreme adherence to party-lines, without objective consideration of policy:

The emphasis on bipartisanship is, I think, misplaced. There is no special virtue in having some Republicans and some Democrats take similar positions. The desired value, really, is independent thought and an objective judgment. It obviously can’t be that all Democrats come to one conclusion and all Republicans come to the opposite conclusion by expressing their individual objective judgments. Senators’ sentiments expressed in the cloakroom frequently differ dramatically from their votes in the well of the Senate. The nation would be better served, in my opinion, with public policy determined by independent, objective legislators’ judgments.

The Senator submitted into the record an appendix of "Some Suggested Revisions to the National Labor Relations Act," indicating -- at the time -- that he might revisit his position on EFCA if the parties refused to consider any of them. Many of these ideas were more fully outlined in the Senator's 2008 Policy Essay in the Harvard Journal on Legislation, “Representation Without Intimidation: Securing Workers’ Right To Choose Under The National Labor Relations Act". The Senator's suggestions included:

• Establishing a timetable:

(a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union

(b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension.

(c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

• Adding unfair labor practices:
  
  • an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign;
     
  • an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;
     
  • an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.

• Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired
   
• Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign
   
• Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service
   
• On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.
   
• Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith
   
• Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;
   
• Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.
   
• If the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.
   
• Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith
   
• Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.

You can read more about these ideas and subsequent administrative action on some of them at our EFCA tag, or in this 2009 MLA White Paper, "The Employee Free Choice Actin the 111th Congress".

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Yesterday and today the Senate debated and voted on S.J. Res 36, a Resolution of Disapproval aimed at prohibiting the National Labor Relations Board from implementing its new election rules that will shorten the time between the filing of an NLRB petition and the conduct of a union representation election. The Senate rejected the resolution by a vote of 54-45. President Obama threatened to veto the resolution if it passed the Senate.

After the vote, Senator Michael Enzi (R-WY), who introduced the resolution, stated:

This vote was an important opportunity to send a message to the NLRB that their job is not to tip the scale in favor of one party or another, but to fairly resolve disputes and conduct secret ballot elections. The NLRB’s duty as a federal agency is to be the referee and decide what is fair for the parties involved, based on the clear facts of the case.  The NLRB will be tipping the scale with this ambush elections rule, which will go into effect next week.

Meanwhile, the UFCW issued a press release celebrating the outcome while asserting a need for additional measures to make organizing easier: 

This NLRB rule is a modest step toward improving the rights of workers to organize. It will help eliminate some of the unnecessary delays and frivolous lawsuits that prevent workers from receiving a fair and timely election. But make no mistake, the NLRB union election process still overwhelmingly favors employers who control workers' schedules and opportunities for raises and promotions. Majority sign-up, binding arbitration, and true employer neutrality are all still needed to make the system even remotely fair.

As such, labor unions are not completely satisfied with the new election rules and will continue their push for passage of the Employee Free Choice Act (EFCA). 

The NLRB's new election rules will become effective April 30, 2012 barring a ruling by the court in the U.S. Chamber of Commerce's lawsuit  against the NLRB. Both sides have filed dueling summary judgment motions and are awaiting a ruling from the district court.

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The National Labor Relations Board announced today that it has scheduled a vote on whether to adopt "a small number" of the changes to its election procedures that the Board proposed back in June.  According to the Board, "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing."  The proposed changes include:

• shortening the period between the filing of a petition and the conduct of a representation period by days, if not weeks;
• deferring most voting/bargaining unit issues until after the election;
• eliminating the parties' ability to request review of a Regional Director's decision prior to the election;
• expediting the production of a list of employees and their contact information to the union, including phone numbers and email addresses; and
• allowing for the filing of election petitions and posting of notices electronically.

The Board received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at a two-day hearing in July.  Senator Jim DeMint (R-SC) soon thereafter introduced “The Fair Representation in Elections Act of 2011” (S. 1425), which would guarantee that no representation election is held within forty (40) days after the filing of a petition, and until the Regional Director has resolved all jurisdictional, unit determination and eligibility issues.  Last month, the House Committee on Education and the Workforce voted to send Committee Chairman John Kline's (R-MN) similar bill, the "Workforce Democracy and Fairness Act" (H.R. 3094) bill to the floor.

In today's announcement, the Board indicates:

in light of the possibility that the Board will lose a quorum at the end of the current congressional session, Board Chairman Mark Pearce will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.

The Chairman and the Board's other two Members will discuss and vote on a resolution to accept the Chairman’s proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.

One might expect the Board to limit its consideration to the less drastic and controversial elements of its proposals, on which there appears to be unanimous consensus among the Board's three Members.  A dissenting Board Member could very likely prevent anything from being passed by simply stepping down prior to a vote, thereby denying the Board a quorum under the holding of the Supreme Court's decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.

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On the heels of the National Labor Relations Board's proposed rulemaking to shorten the time period between the filing of a representation petition and the holding of an election, Cornell Professor Kate Bronfenbrenner has issued a new study entitled "The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence."  Along with Columbia professor, Dr. Dorian Warren, Professor Bronfenbrenner has published the eight page "working paper" in support of the Board's effort to drastically limit the pre-election campaign period.

Like the Professor's earlier works in support of similar efforts, like the Employee Free Choice Act, the study is unabashedly partisan.  As in her earlier works, "No Holds Barred: The Intensification of Employer Opposition to Organizing." and "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing," the Professor assumes all allegations of unfair labor practices to have actually occurred, and conflates any and all legitimate employer response to organizing with unlawful coercion and intimidation.  Again, the Professor suggests here that all of the anecdotal data studied came exclusively from interviews with union organizers -- yet there is no effort to discount the obvious biases likely held by this self-interested population. 

No matter.  This study -- like those before it -- is likely to be widely cited by proponents of the Board's current effort to eliminate lawful employer speech in response to union organizing efforts.  The paper's introduction may provide a telling window into where supporters would like to see the time limits drawn:

Our analysis of Bureau of National Affairs (BNA) data from 1999-2009 found that in the last two years there has been a slight increase in the number of representation elections being held between 21-30 days after the petition.  But throughout the decade there have been virtually no election dates in the first 20 days after the petition is filed.  Thus, while the NLRB has made some progress in meeting their performance objectives, as former NLRB General Counsel Fred Feinstein explains, "the problem has been that a party in any election case has the ability to undermine the expression of employee free choice by manipulating the Board procedures to create delay."

More cases being held within 21-30 days is "some progress," but bottom line -- proponents of the Board's proposed measures still consider more than 20 days to be "delay."

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As reported earlier, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections.  While legislators were unable to eliminate the time between petition and representation election entirely via the failed push for the Employee Free Choice Act, there have consistently been proponents of shortening this period, including current Chairman Wilma Liebman, Senator Tom Harkin (D-IA), former NLRB Chairman William Gould, and former Senator Arlen Specter (D-PA).

While official publication of the Notice is expected tomorrow, there are numerous related resources online at the Board's website including a red-lined version of the proposed rule changes, a Fact Sheet and a "summary of the main changes" being contemplated to the representation process.

Regarding these significant proposed changes, reflecting comments she has made in the past, Chairman Liebman today explained:

One of the most important duties of the National Labor Relations Board is conducting secret-ballot elections to determine whether employees want to be represented by a labor union.  Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.  Under the law, as the Supreme Court has explained, the Board is responsible for the rules that govern representation cases. 

Over the decades, the Board has revised its rules periodically, looking for ways to achieve a broadly-shared goal: making the representation process work as well as possible.  One important result has been to reduce the typical time between the filing of an election petition (which triggers the Board’s procedures) and the actual election.  But the current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices.  It is worth asking, again, whether the Board can now do a better job, and can better serve the employees, employers, and unions that participate in the election process.

Member Brian Hayes has dissented from the Board's 3-1 decision to propose these changes at this time.   In no uncertain terms, Member Hayes sets forth his position thus:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. For my part at least, I can and do dissent.

The Board will hold a public hearing on the proposal on July 18 (and possibly 19); and is soliciting written comment for at least a 60-day period.  Employers should seriously consider participating in this process to the fullest extent possible.

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As has been expected, for quite some time now, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections. According to the NLRB's fact sheet, "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." However, these proposed amendments to the NLRB's Rules and Regulations will have a drastic effect on an employer's ability to respond to organizing campaigns and for employees to become educated about the advantages and disadvantages of union representation and collective bargaining.

Under current Board policy, the NLRB strives to hold representation elections within 42 days after the petition is filed. However, the Board's proposed amendments will shorten that period by days, if not weeks, by deferring most voting/bargaining unit issues until after the election and eliminating the parties' ability to request review of a Regional Director's decision prior to the election.

Specifically, the proposed rules will require the Regional Director to schedule the pre-election hearing to begin within seven days after a hearing notice is served. By the start of the hearing, the employer must state its position on election-related issues that it intends to raise at the hearing, including the Board's jurisdiction; the appropriateness of the bargaining unit sought by the union, and the type, date, and location of the election. The union will then respond to the positions taken by the employer. After hearing the parties' positions, the hearing officer will identify their disagreements and accept evidence only on genuine issues of material fact affecting those issues. However, and most importantly, unless the issues affect 20 percent or more of the unit, the litigation of those disputes will be deferred until after the election. Moreover, even if the unit issues are litigated prior to the election, the parties cannot request review from the Board prior to the election.

Once the Regional Director issues his or her direction of election, the employer will have two days, as compared to seven days now, to provide a final list of eligible voters to the union (the Excelsior list). Current rules and regulations only require the employer to provide names and addresses, but the new rules will require the employer to list phone numbers and email addresses on the Excelsior list when available.

The proposed rules also seek to take advantage of modern communication technologies. In addition to providing email addresses on the voter eligibility list, the new rules will allow petitioners to file election petitions electronically and for the NLRB to provide notices directly to employees through email when addresses are available.

The Board invites comments on its proposed rulemaking in two ways. First, the Board is holding a public hearing scheduled for July 18 and possibly July 19. Second, it is providing a 60-day period for written comments, with 14 days for replies, that may be submitted electronically though Regulations.gov or by mail to the Board's Washington D.C. headquarters. As with the Department of Labor's proposed revised interpretations of the Labor-Management Report and Disclosure Act issued today, employers are encouraged to assess the potential impact of these proposed changes on their operations; and to consider submitting comment.

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On June 9, 2011, the nonprofit organization Save Our Secret Ballot and 34 individuals moved to intervene as defendants in the National Labor Relations Board’s lawsuit against the State of Arizona challenging Article 2 § 37 of the Arizona Constitution.  That state constitutional provision, passed by voter referendum last year, requires a guarantee of a secret ballot in any election for union representation. Save Our Secret Ballot is a nonprofit organization whose stated purpose is to educate the public on the continued need for a secret ballot for union recognition. Almost all of the individual intervenors are Arizona residents employed in the non-unionized, private construction industry.

In the lawsuit, the Board claims that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

The Board's Complaint asserts that “[t]he NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative…” Accordingly, the Board argues that Arizona Constitution Article 2 § 37 ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Save Our Secret Ballot argues in its motion that it is entitled to intervene because it has acquired particular knowledge of legal and factual issues implicated by the Board’s lawsuit through its development of the ballot measure in Arizona and in other states. It also claims that Arizona’s interests are not identical to its own “because Save Our Secret Ballot’s interests include expanding the secret ballot protection in states beyond Arizona.” The motion further explains that the individuals should be allowed to intervene because:

the individual applicants will assert their personal rights under the First Amendment and the National Labor Relations Act…. Although the State has standing to defend individual rights established by its laws, see, e.g., Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 605 (E.D. Va. 2010); Florida ex rel. McCollum v. U.S. Dept. of Health & Human Services, 716 F. Supp. 2d 1120 (N.D. Fla. 2010), it does not have standing to assert individual federal constitutional or statutory rights. Those critical affirmative defenses may only be raised by the individual applicants.  

Save Our Secret Ballot and the individuals claim that amicus status is insufficient because it does not allow them to raise issues or arguments formally and gives them no right to appeal an adverse decision.  According to the motion, the State of Arizona will not oppose their request to intervene.

Several former Board officials, including one former Republican General Counsel who testified at a February 11, 2011 hearing before the House Committee on Education and the Workforce, have suggested that the Board's preemption theory has significant merit under these circumstances.  Other witnesses at that hearing encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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In today's Washington Post, columnist Harold Meyerson chronicles frustration with the state of the labor movement in America and the resulting shift in the organizing strategy of the AFL-CIO and the SEIU.  In "Labor's Hail Mary Pass," he asserts this shift "reflects a belief that the American labor movement may be on the verge of extinction and must radically change its game."

After highlighting the failure of successive administrations to overhaul the 1935 National Labor Relations Act, he discusses the new strategic approaches these prominent labor organizations are taking in the face of dwindling private-sector union representation:

While some unions still wage more conventional organizing campaigns, the campaign that best captures the desperation of American labor today is that of the SEIU. Perhaps the best-funded and most strategically savvy of American unions, SEIU has embarked on a door-to-door canvass in the minority neighborhoods of 17 major American cities. The goal isn’t to enroll the people behind those doors in a conventional union but, rather, into a mass organization of the unemployed and the underpaid that can turn out votes in 2012 and act as an ongoing pressure group for job creation and worker rights during (presumably) Barack Obama’s second term.

“We realized we could organize one million more people into the union and it wouldn’t in itself really change anything,” SEIU President Mary Kay Henry told me earlier this year. “We needed to do something else — something more.”

The SEIU’s program — like its semi-counterpart in the AFL-CIO’s Working America program, a door-to-door canvass in white working-class neighborhoods — will surely help Democatic candidates, despite the frustrations that nearly all labor leaders feel toward the party. But, like Working America, it signals a strategic shift by American labor, whose ranks have been so reduced that it now must recruit people to a non-union, essentially non-dues-paying organization to amass the political clout that its own diminished ranks can no longer deliver. Since labor law now effectively precludes workplace representation, unions are turning to representing workers anywhere and in any capacity they can. It’s time, they’ve concluded, for the Hail Mary pass.

Read the entire piece here.

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The National Labor Relations Board this afternoon filed suit against the State of Arizona in the federal District Court for the District of Arizona.  Consistent with its previous announcement of its intent to do so, the Board is seeking a Declaratory Judgment proclaiming Arizona Constitution Article 2 § 37 pre-empted by the National Labor Relations Act. 

Article 2 § 37 of the Arizona Constitution, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

After citing sections of the NLRA which pertain to the designation or recognition of a union representative, the Board's Complaint asserts:

The NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative where, for example, employees successfully petition their employer to voluntarily recognize their designated representative on the basis of reliable evidence of majority support, in accordance with Sections 7 and 9 of the NLRA, 29 U.S.C. §§ 157 and 159, or where a construction union seeks recognition from a construction employer in accordance with Section 8(f) of the NLRA, 29 U.S.C. § 158(f).

Moreover, argues the Board, the provision ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Following an earlier exchange of positions between the Board and four states on this issue, several witnesses at a February 11, 2011 hearing before the House Committee on Education and the Workforce encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

The State Attorneys General responsible for enforcing their states' secret ballot protection measures responded strongly to the initial threats by the Acting General Counsel to initiate litigation.  In the face of politically charged reactions to other recent choices, the Acting General Counsel is showing no signs of embracing a less aggressive approach going forward.

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Steven Greenhouse writes in the New York Times that the National Labor Relations Board plans to proceed with lawsuits against two of the four states it threatened earlier this year over state constitutional amendments to ban union recognition by card-check.  On January 14, 2011, Acting General Counsel Lafe Solomon advised the Attorneys General of Arizona, South Carolina, South Dakota and Utah that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections.  In response the states argued that the amendments support the current federal law and did not disrupt the federal regulatory scheme.  

In February, the Acting General Counsel replied to the states indicating that the Board would refrain from bringing suit while they discussed whether they could resolve the issue "without the necessity of costly litigation."  Now, Greenhouse reports the Board has indicated it will soon file federal lawsuits against Arizona and South Dakota seeking to invalidate the amendments: 

In a letter sent on Friday, the labor board told those states that it would invoke the United States Constitution’s supremacy clause in asserting that the state constitutional amendments conflict with federal laws and are pre-empted by those laws. One federal official said the lawsuits would be filed in the next few days.

The Board has suggested it might proceed against the other two states at a later date.  Greenhouse includes reaction from Arizona and South Dakota to the announcement: 

In an interview, Tom Horne, Arizona’s attorney general, criticized the board’s planned suit, saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.” He said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.

South Dakota’s attorney general, Marty J. Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.”

At a February 11, 2011 hearing before the House Committee on Education and the Workforce, several witnesses indicated that any preemption dispute over this issue could be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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This past April Fool's Day, labor relations consultant Phil Wilson raised eyebrows and heart rates with his gag e-mail announcing that the National Labor Relations Board had adopted implemented a new 5-day timetable for union representation elections.  Our post the next day:

So, while LRI's April Fool's e-mail alert was a well-designed prank on employers and the management bar, none of us should be too shocked to see a very similar e-mail from LRI or others some time in the not too distant future...

We may soon see how distant "not so distant" is.  At Wednesday's hearing before a subcommittee of the House Committee on Appropriations, Board Chairman Wilma Liebman acknowledged the Board is considering engaging in rulemaking to shorten the time frame from the filing of a representation petition to the conduct of an election.  As reported by the Chamber of Commerce's NLRB Insight blog:

Perhaps the most interesting revelation came when Rep. Jack Kingston (R-GA) asked Chairman Liebman about recent comments by Member Pearce regarding "quick snap" elections. Rep. Kingston's comments were likely referring to comments Member Pearce made at a conference at Suffolk University Law School in October. As reported by the Daily Labor Report (BNA), Member Pearce said that the Board must seek to hold an election as soon as possible after a petition is filed and that he found the system used in some parts of Canada, where elections are held in as little as 5 to 10 days, "intriguing."

In response, Chairman Liebman noted that while the current median time for elections is 38 days, the Board is giving "active consideration" to conducting rulemaking in this area and that the Board was looking at the various components that are part of the current secret ballot election process. In particular, the Board is considering whether these components are still working and necessary or whether they detract from the effectiveness of conducting elections.

Just a week before, the Chairman told NPR that the current NLRB election process is too long and favors management.  During the past few years, proponents of labor law reform like Senator Tom Harkin (D-IA), former NLRB Chairman William Gould, and former Senator Arlen Specter (D-PA) have advocated a shorter election period.

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Some of you may have received an e-mail alert yesterday from labor consultant Phil Wilson at LRI with the Subject line “Breaking News: NLRB Implements 5-Day Elections.” This was enough to raise the heart rates of many labor professionals around the country. The body of the email explained that the NLRB’s Representation Casehandling Manual was being changed “to shrink the target date for RC elections from the current 42-day period down to a 5-day target.”  The email’s “link” to the new manual told readers that it was all an April Fool’s trick from LRI. Management and its labor advisors breathed a sigh of relief. But was that relief premature?

The idea of quicker elections is not new. Critics of current Board procedure often complain that the 42 day election period is too long and allows management to intimidate voters.  Expedited elections were one of many alternatives to EFCA put forth by proponents of labor law reform. Senator Tom Harkin (D-IA) floated a 21 day election deadline as a potential compromise to EFCA. Former NLRB Chairman William Gould has also advocated a 21 day election period. And former Senator Arlen Specter (D-PA) often advocated a shorter election period as one component of labor law reform.

As the debate over EFCA cooled, the number of people discussing changes to the NLRB election process had dwindled. But it has not vanished completely. Just a day before LRI's gag e-mail, NLRB Chairman Wilma Liebman said in an interview that the current NLRB election process is too long and favors management.

So, while LRI's April Fool's e-mail alert was a well-designed prank on employers and the management bar, none of us should be too shocked to see a very similar e-mail from LRI or others some time in the not too distant future...

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Chairman of the House HELP Sub-Committee, Rep. Phil Roe (R-TN) has introduced the Secret Ballot Protection Act (H.R. 972).  Back on January 27, 2011, Senator Jim DeMint (R-SC) introduced the Senate version of the bill (S. 217).  Rep. Roe's bill tracks Senator DeMint's bill, and the language of the bill as introduced in previous sessions of Congress.

While the bill faces numerous mathematical obstacles to passage in the Senate, not to mention a certain Presidential veto, the House version should pass easily.  As the National Labor Relations Board and proponents of the Employee Free Choice Act continue to expand endorsement of alternative methods of union recognition, we should expect the House might conduct hearings on this bill.  In recent hearings before Rep. Roe's Sub-Committee, management attorneys urged Congress to pass the Secret Ballot Protection Act in order to avoid the pre-emption battle unfolding between the National Labor Relations Board and state governments over state secret ballot constitutional amendments.

More resources and commentary:

• "The secret ballot protection act" by Rep. Roe -- The Hill's Congress blog
• Web archive of February 11, 2011 House HELP Sub-Committee Hearings
• "Secret Ballot Protection Act Reintroduced in House" -- Enochs Law Firm blog

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In case you missed the reference by Senator DeMint (D-SC) included in our post yesterday, the Attorneys General of Arizona, South Carolina, South Dakota and Utah have filed a joint letter in response to NLRB Acting General Counsel Lafe Solomon's recent invitation to address the constitutionality of the states' secret ballot amendments. 

The letter from the AG's begins:

Your Office wrote to each of us on January 13, threatening to file lawsuits challenging our States' constitutional provisions guaranteeing the secret ballot in elections for determination of employee representation. We reject your demand to "stipulate to the unconstitutionality" of these amendments. These state laws protect long existing federal rights, and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.

The voters of our States overwhelmingly support the laws that you threaten to challenge. Indeed, 86% of South Carolina's voters approved the amendment supporting secret ballots. Likewise, the voters in Utah, South Dakota, and Arizona approved constitutional amendments protecting secret ballots by votes of 60%, 79% and 61% respectively.

The states argue that the amendments support the current federal law that guarantees an election with secret ballots "if the voluntary recognition option is not chosen," and do not disrupt the federal regulatory scheme in any way.  The Attorneys General pledge to defend the provisions against lawsuits by the federal government and urge the Board to respect the decision of the States' voters. 

It would appear to be the Board's move.

More commentary and resources:

• "4 State Attorneys General Respond to NLRB Threat" -- Daily Herald (UT)
• "Union Card-Check Fight Escalates" -- Wall Street Journal
• "States Rebuff Federal Threat Over Union Laws" -- BusinessWeek

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Senator Jim DeMint (R-South Carolina) today introduced the Secret Ballot Protection Act (SBPA), a bill intended to "guarantee the right of every American worker to have a secret ballot election on whether to unionize."  While the full text is not yet available, versions of this bill introduced in earlier sessions of Congress would have made it unlawful for an employer to recognize or bargain with a union unless a majority of employees had voted for union representation in an NLRB-conducted secret ballot election.  The bill has been introduced repeatedly in previous Congresses during legislative battles over the Employee Free Choice Act.  Seventeen Republican cosponsors have joined DeMint to introduce the bill.

In an introductory press release, Sen. DeMint referenced EFCA directly:

“Last Congress, union bosses and their Democrat allies tried their best to deny workers their basic American right to a guaranteed secret ballot election....  Secret ballot voting is a basic American value that we must protect. This bill ensures every American worker gets to cast a secret ballot vote without pressure and fear of retribution from union organizers and coworkers looking over their shoulder. No American should be forced to join or pay dues to a union just to have the opportunity to work and provide for their family.”

The Senator's release also makes express reference to the recent letter sent by the Acting General Counsel of the NLRB to four states – South Carolina, Arizona, South Dakota and Utah -- regarding their state constitutional amendments making secret ballot elections mandatory:

The threatening letter was written by acting NLRB general counsel, Lafe Solomon, who has not been confirmed by the Senate. Today, the states responded to the board in a letter stating: “These state laws protect long existing federal rights and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.”

In a Washington Post piece earlier this month, I predicted that passage of either the Employee Free Choice Act or the Secret Ballot Protection Act would be nearly impossible in this Congress.  It isn't hard to see why.  While the SBPA would likely sail through the House, finding the thirteen Democratic Senators to break party ranks to pass a cloture motion on this will be difficult.   To be sure there were Democrats who opposed EFCA, but few of them staked a vocal, public position -- and some of them are no longer serving.  

Still, this bill may be an important contribution to a debate certain to continue, if not by legislation, certainly via the Board's administrative processes and the Courts -- namely, to what extent are alternative means of union recognition lawful, tolerated, inferior, encouraged or prohibited?

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The Employee Free Choice Act appears completely dead -- not just "mostly dead," as it is unlikely to make the lame duck Congressional agenda as many feared.  Yet, the National Labor Relations Board continues its recent efforts to expand traditional Board remedies administratively without the passage of new legislation. 

Today, Acting General Counsel Lafe Solomon issued a Memorandum extending an initiative he announced on September 30, 2010 to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign.

The new Memorandum indicates that In these cases remedies should be crafted to: “recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice." For example, the memo suggests that regional offices include in complaints, and in 10(j) petitions, demands for unique remedies such as a reading of the Board’s remedial notice, or allowing union access to workplace bulletin boards and providing names and addresses of employees.

Coincidentally or not, the Board continues to phrase its announcements in language consistent with the suggestion that it is administratively pursuing at least some of the end results EFCA failed to accomplish legislatively.  The Acting GC's intro to this Memorandum begins:

The protection of employee free choice regarding unionization is a keystone of the Agency’s mission, and I am committed to making the principle of employee free choice meaningful. Accordingly, as Acting General Counsel I have placed a priority on ensuring that the Agency protects employee freedom of choice with regard to unionization by obtaining effective remedies for employers’ unlawful conduct during union organizing campaigns.

This is not likely to be the final effort along these lines. 

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The Employee Free Choice Act provision which garnered the least attention during the legislative push for the bill during the last several years was the section expanding remedies under the National Labor Relations Act.  After EFCA's future prospects appeared particularly dim, back in February 2010, we speculated in a Bloomberg Law Reports piece that the National Labor Relations Board would seek to expand traditional Board remedies administratively without the passage of new legislation.  That prediction is now increasingly coming to fruition.

In August, a District Court Judge granted a Board-sought preliminary injunction in a refusal to bargain case.  In October, the Acting GC announced a new initiative to increase significantly the Board's pursuit of preliminary injunctive relief in so-called "nip-in-bud" cases.  Later that month, the Board issued a decision awarding compound interest, changing the long-standing practice of ordering simple interest awards.  Finally, another October decision expanded the traditional Notice-posting remedy to include electronic posting under appropriate circumstances.

Now, a late November decision in Deja Vu Mechanicals, 356 NLRB No. 37 (Nov. 24, 2010), casts light on an increasing trend in connection with the settlement of Board cases.  The Employer settled a number of Unfair Labor Practice (ULP) allegations with the Board, which settlement included an obligation to pay five (5) make-whole payments to a particular employee.   The Employer failed to comply with that obligation, and the Board took further action. 

But the case did not go the typical "compliance" route because the Employer had agreed to a settlement agreement which included the following language:

The Charged Party agrees that in case of noncompliance with any of the terms of this Settlement Agreement by the Charged Party and after 14 days notice from the Regional Director of the National Labor Relations Board of such noncompliance without remedy by the Charged Party, the Regional Director may reissue the complaint dated February 25, 2010 in this case. The General Counsel may then file a motion for default judgment with the Board on the allegations of the complaint. The Charged Party understands and agrees that the allegations of the reissued complaint may be deemed to be true by the Board and its answer to such complaint shall be considered withdrawn. The Charged Party also waives the following: (a) filing of answer; (b) hearing; (c) administrative law judge’s decisions; (d) filing of exceptions and briefs; (e) oral argument before the Board; (f) the making of findings of fact and conclusions of law by the Board; and (g) all other proceedings to which a party may be entitled under the Act or the Board’s Rules and Regulations. On receipt of said motion for default judgment, the Board shall issue an order requiring the Charged Party to show cause why said motion of the General Counsel should not be granted. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the Board’s order and U.S. Court of Appeals judgment may be entered thereon ex parte.

(Emphasis supplied).

In Deja Vu, the Board ordered the immediate payment of the additional financial amounts plus daily compounding interest.  We have been aware of discretionary efforts by Regional Offices to obtain tough "performance" or "compliance" language like this in the past -- particularly in cases involving recalcitrant employers.  But to the extent this fits neatly into a developing trend, employers should continue to watch efforts by the Board to expand and strengthen traditional Board remedies in all cases.

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Back in August, the Board granted review in Lamon Gasket Co., a case that will reconsider a 2007 Board decision (Dana Corp., 351 NLRB 434). Under Dana, when an employer agrees to voluntarily recognize a union based on signed authorization cards, it may advise employees that they have a 45 day window to file a petition for an election to decertify the union or to support a rival union. If it does not give employees this notice, any contract negotiated with the recognized union will not serve to bar a future election petition during the life of the contract.

Dana was part of a series of rulings issued in the closing weeks of then Chairman Battista's term.  Many of these decisions split as 3-2 votes, and modified existing Board law.  Each contained a strong dissent by current Chairman Liebman.  Dana and the others provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board. Chairman Liebman testified at one such hearing, and has reiterated her views consistently many times since.   Back in April 2010, after President Obama announced his nominees for the Board, we suggested that Dana would be among the first decisions of the prior Board revisited.

And so it has been.  Some fourteen amicus briefs have been filed, following Board invitation, by parties including the AFL-CIO, the U.S. Chamber of Commerce, Senator Orrin Hatch (R-UT), the National Association of Manufacturers (NAM), the SEIU, and Congressmen John Kline (R-MN) and Tom Price (R-GA).  The arguments for and against expressed in these briefs shape up essentially as one might expect from a referendum on the Employee Free Choice Act's card-check provisions.  Those in favor of preserving the Dana holding argue that it is the only way to ensure that employees have a free and fair opportunity to vote for or against union representation in a secret ballot election.  Those who would have Dana overturned, argue that the Board has long recognized the principle of voluntary recognition by other means and that the "open period" for decertification announced by Dana only creates delay in the bargaining process, serving to frustrate the will of the majority of employees.

Then-Member Liebman's dissent in Dana provides a clear indication of where this Board is likely to go in Lamon Gasket:

The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: it honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority's decision subverts both interests: it subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships. In addition, the majority's view fails to give sufficient weight to the role of voluntary recognition in national labor policy and to the effect of existing unfair labor practice sanctions to remedy the problems the majority claims to see.

What will be more interesting and important to watch is the political fall-out of the Board's reinforcement of voluntary recognition, and what impact that will have on the labor law debate over the role of the secret ballot.  Stay tuned...

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On Tuesday, Republicans gained a majority in the House, picking up at least 60 seats with several more races remaining too close to call. Republicans also picked up 6 seats in the Senate but fell short of gaining the majority. MLA’s client advisory on the election results is available here. What impact might the significant Republican gains in the Congress have on developments in labor law?

The widely held consensus suggests that the most ambitious proposed piece of labor legislation – the Employee Free Choice Act – is “dead.”   The Las Vegas Journal Review was quick to celebrate this notion in an op-ed “Card Check: R.I.P.”  Of course, there had been no chance that the bill was going to pass in its original incarnation as early as March of last year.  The bill, most recently introduced as H.R. 1409, S. 560, would would amend the National Labor Relations Act to make it easier for unions to organize employees. The bill would also require interest arbitration of first contracts after 120 days and would strengthen penalties for certain unfair labor practices. 

The card-check provisions, however, faced vocal opposition from Republican and moderate Democrat Senators alike – failing to obtain enough votes for cloture even when the Democratic caucus controlled 60 votes in the Senate.   It is unlikely that there will be enough votes to pass the bill again in the House (as was done in 2008) – especially since, as of this time, at least forty-five co-sponsors of H.R.1409 will no longer be serving in the 112th Congress.

There have also been measures introduced to guarantee the availability of the secret ballot in union representation elections. Tuesday, four states passed initiatives to that effect.  These measures will face stiff Court challenges on the grounds of federal preemption of labor law.  But last year, federal legislation was also introduced as a bar to EFCA’s card-check provisions. The Secret Ballot Protection Act (H.R. 1176, S. 478) would make it unlawful for an employer

to recognize or bargain collectively with a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9 [of the NLRA].

The bill was introduced in the 111th Congress by Rep. John Kline (R-MN) -- the ranking member of the House Committee on Education and Labor.  Consistent with our earlier speculation, this week Rep. Kline expressed his interest in chairing that Committee in the Republican-controlled House. It is unlikely that his chairmanship and the Republican House majority alone will be sufficient to see legislation like this pass, particularly in light of the Democratic Senate and Presidential veto, but it may be enough to take the issue of card check recognition off the table either way during any legislative discussions.

Since this split government will make major legislative initiatives difficult, it is entirely likely that we will continue to see changes advanced by administrative and executive action.  Early in this administration, the White House showed a willingness to advance elements of its labor agenda via the issuance of executive orders. Moreover, the new National Labor Relations Board, with a weighted 3-to-1 Democrat tilt, has already been more aggressive – urging the increased use of preliminary injunctive relief, significantly expanding traditional Board remedies and granting review in cases expected to invite reversals of Board precedent. We may reasonably expect these trends – as well as an increase in administrative rule-making power – to continue. During the next few weeks, we will explore these issues here in further detail.

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Amid the various Election 2010 returns, NAM's Shopfloor.org reports on the passage of ballot initiatives in four states to require secret ballots in union representation elections:

In a multistate rebuke to organized labor, voters in four states are approving measures to reaffirm the sanctity of the secret ballot. No Employee Free Choice Act for us, they say.

South Carolina, AP, “SC voters OK right to secret ballot in union votes”

South Dakota, Constitutional Amendment K: “An Amendment to Article VI of the South Dakota Constitution relating to the right of individuals to vote by secret ballot. Precincts: 578/791
Yes 78.46%
No 21.52%

In Utah, Constitutional Amendment A is leading in early balloting, 58-42 percent.

And in Arizona, Proposition 113 is winning 61-39 percent.

We reported on similar efforts here in early 2009, noting that federal preemption principles likely pose significant legal challenge to the enforcement of state provisions such as these.  Based on these election results, we may soon find out if that assessment is correct or not.

More information and commentary:

• "Ballot measures guaranteeing secret ballot in union elections pass in four states" -- Greenberg Traurig's LE Blog
• "State Secret Ballot Measures" -- Workplace Prof Blog
• "Corporate-Backed Anti-Union 'Secret Ballot' Measures Pass in Four States" -- AFL-CIO NOW Blog

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In today's New York Times, labor beat writer Steven Greenhouse has a piece entitled "Unions Fear a Rollback of Rights Under Republicans."  The article cites concerns by the leaders of AFSCME and the AFL-CIO that Republican Congressional majorities would pursue legislation contrary to union interests.

One such item mentioned is the Secret Ballot Protection Act -- a bill designed precisely opposite the card check provisions of the Employee Free Choice Act.  Both these bills have previously been proposed repeatedly.  EFCA was introduced as H.R. 1409 and S. 560 in the 111th Congress, and before that as H.R. 800 (which passed the House) and S. 1041 in the 110th.  The Secret Ballot Protection Act was originally proposed in the 110th Congress as H.R. 866 by the late Rep. Charlie Norwood (R-GA), but was proposed more recently in the 111th as H.R. 1176, S. 478.  The bill's most recent introducing sponsor was Rep. John Kline (R-MN) -- the ranking member of the House Committee on Education and Labor.  A takeover of the House by the G.O.P. may well result in Rep. Kline's chairmanship on that committee with oversight of labor legislation.

Professor Jeffrey Hirsch thinks this

discussion of the expected legislative bills--including a prohibition against voluntary recognition and a requirement that all employees opt-in to political spending--to be a bit silly, as even if the Republican control both houses, such bills are a dead letter in the near-term (a little thing called "presidential veto" still exists).

I agree with his assessment that the more important -- if not, most important -- portion of the article is the speculation by former NLRB General Counsel Ronald Meisberg

that if a Republican-controlled House cripples labor-backed legislative efforts to make it easier for workers to unionize, the Democratic-controlled labor board might take administrative steps. Mr. Meisburg, a lawyer at Proskauer Rose, noted that one Democratic labor-board member recently proposed making a change in the timing of workplace elections after employees file a petition to hold a unionization vote, reducing the delay to just five or 10 days. Unions want an accelerated schedule because they say employers have too much time to ply workers with antiunion propaganda, but employers complain that such quick elections would deny employers an adequate opportunity to campaign against unionizing.

The recent activity of the National Labor Relations Board and the President's early reliance on Executive Orders on labor matters provide ample grounds to suspect greater action via administrative means if the elections produce a split government.

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NLRB Acting General Counsel Lafe Solomon has announced an initiative to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign. According to the announcement:

…in all cases found meritorious the General Counsel’s office will consider seeking a federal injunction that would compel an employer to offer reinstatement to the fired workers pending litigation of the underlying unfair labor practice case. In addition, new timelines and procedures have been created to speed up the process.

In a General Counsel Memorandum released along with his announcement, Mr. Solomon explains his motivation for this decision thus:

An important priority during my time as Acting General Counsel will be to ensure that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces. When an employer commits such unfair labor practices, it “nips in the bud” all of the employees’ efforts to engage in the core Section 7 right to self-organization.

Under Section 10(j) of the Act, the Board is authorized to seek preliminary injunctions from federal courts to protect victims of unfair labor practices pending litigation. The guidelines promulgated under this new initiative direct the Regional Offices to identify potential Section 10(j) organizing campaign discharge cases “as soon as possible after the filing of the charge” and establish coding instructions to facilitate the Board’s tracking of such cases. Pursuant to the “optimal timeline” set forth in the guidelines:

• Where possible, the lead affidavit should be taken within 7 calendar days from filing of charge in all nip-in-the-bud discharge cases.
• Regions should attempt to obtain all of the charging party’s evidence within 14 calendar days from the filing of the charge.
• If charging party’s evidence points to a prima facie case on the merits and suggests the need for injunctive relief, the Region should notify the charged party in writing that the Region is seriously considering the need for Section 10(j) relief and request that a position statement on that issue be submitted to the Regional Office within 7 calendar days after the written notification. This letter can be combined with the letter putting the charged party on notice of the allegations raised by the charge and should generally be sent within 21 days from the filing of the charge.
• A Regional Director will normally make a determination on the merits of the case within 49 calendar days from the filing of the charge. If the decision is to issue complaint, the decision with respect to the need for Section 10(j) relief should be made at the same time.

NLRB Chairman Wilma Liebman said in a statement that the Board has also revisited its procedures for requests to pursue injunctive relief: “The Board recognizes that 10(j) injunctions are a vital enforcement tool and time is of the essence in this kind of case.”

This is the latest in a series of developments expanding or seeking to expand the Board’s use of injunctive relief. Last month, we highlighted a preliminary injunction issued by a federal court in California requiring a bottler to recognize and bargain with the Teamsters pending resolution of unfair labor practice charges. In that blog post we also noted

Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases. Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

With Mr. Solomon’s announcement, it appears that the current Board will indeed be more aggressive in this regard in a wider variety of “nip-in-bud” cases.

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President Obama spoke on Wednesday to the AFL-CIO’s executive council in Washington D.C. While organized labor has expressed frustration at times by the White House’s seeming inability to advance its major labor agenda initiatives, the President highlighted the things his administration has achieved.

According to The Hill:

The president said his administration is enforcing labor provisions in trade agreements and looking to grow the economy by promoting the renewable energy industry.

“At the heart of it is going to be three powerful words: Made in America,” Obama said. “There are no better workers than U.S. workers. There are no better workers than your members.”

Obama vowed to keep fighting for the Employee Free Choice Act (EFCA), so-called “card-check” legislation that would make union organizing much easier.

“Getting EFCA through the Senate will be tough. It’s always been tough; it’ll continue to be tough. But we’ll keep on pushing,” Obama said.

But Obama also said EFCA is not the only means available for promoting unions. He noted his administration’s work in appointing labor-friendly officials to the National Mediation Board and the National Labor Relations Board, agencies that have oversight of union elections and labor law violations.

AFL-CIO President Richard Trumka said Obama “did a great job” with the speech.

Regarding EFCA in particular, Trumka said he and the White House are working on a way to move forward on EFCA, though he would not disclose any details:

“We are working on a way to pass it, and they are active participants in that,” Trumka said.

Trumka said labor realizes Democrats need their help in the upcoming elections and predicted the threat of Republican gains will spur union members into action.

Progressive online organizer Michael Whitney has a slightly different view over at FireDogLake.

More commentary:

• Full Transcript of President's Remarks via Federal News Service
• "Obama pledges labor support" -- Politico
• "If EFCA Won't Pass the Senate, We'll Turn to Federal Labor Boards" -- ShopFloor.org

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Earlier this week, the National Labor Relations Act celebrated its 75th anniversary.  Secretary of Labor Hilda Solis marked the occasion by calling for an expansion of collective bargaining in the Huffington Post:

Collective bargaining helped create our middle class. Working people were able to share in the gains of their productivity and labor and management together forged creative solutions to create the powerful engine of the American economy we all are proud of.

In order to rebuild the middle class today, we need to level the playing field for all working people and update our labor laws to fit the 21st century workplace. That's why the President and I support the Employee Free Choice Act - which would update the NLRA so workers can form unions if they choose to without fear or pressure. In addition, millions of workers are not covered by the NLRA including public sector workers, farm workers, domestic workers, and more - so other laws, like the Public Safety Cooperation Act would ensure that firefighters and other public servants have a voice on the job, too.

Some people say that given the state of the economy, we can't afford unions right now. They've got it backwards.

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We started EFCA Report back in January 2009 – after blogging elsewhere on the topic for years – in an effort to keep the management community well-apprised of the bill’s progress as events developed. Over the course of that year-and-a-half, over 12,500 viewers have turned repeatedly to EFCA Report for news, resources, insights and management perspectives on the proposed Employee Free Choice Act.  

In mid-April, the publishers of EFCA Report launched Labor Relations Today, in an effort to bring the same level of quality and insight to the broader range of labor relations issues facing employers in the current political and legal environment. While EFCA has currently stalled in the Congress, there has been no shortage of action by President Obama’s administration to transform the landscape of American labor law: a pro-labor National Labor Relations Board, numerous Executive Orders, administrative agency rule-making, litigation, legislative proposals, etc.

At this point, we believe our commentary on EFCA is placed in proper context by inclusion in the LRT blog with its coverage of a broader range of labor relations issues. Accordingly, within the coming weeks, we will be migrating EFCA Report content and subscribers over to the Labor Relations Today blog. There will be a dedicated EFCA tag where those who wish to continue to follow a more narrow set of issues may focus their reading. 

We thank all our readers for their support of EFCA Report, and hope that they will find Labor Relations Today to be an equally -- or more -- valuable resource.

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Yesterday's BNA Daily Labor Report (subscription required) repeated a comment Senator Tom Harkin (D-IA) made this week on a liberal talk show regarding the Employee Free Choice Act's prospects:

Harkin told the Bill Press radio show that he is “still trying to maneuver” in an effort to get the necessary 60 votes to move the bill through the Senate.

 

“To those who think it's dead, I say think again,” Harkin said, adding “…a lot can happen before Election Day, or maybe in lame duck too.”

The piece then chronicles the Senator's past statements about the bill's fate, which BNA suggests tend to depend on the audience to which they are made:

Harkin made the comments about a week after telling the United Auto Workers that he would fight for the legislation “for as long as it takes” (114 DLR C-1, 6/16/10).

 

In May, however, Harkin acknowledged to a legal conference, where participants were largely against the bill, that he still does not have enough votes to pass the bill as written (92 DLR A-8, 5/14/10). Also, just days before that, he told the International Association of Machinists that he had “no higher priority” than getting EFCA signed into law (90 DLR A-7, 5/12/10).

It remains nearly impossible for EFCA in its current form to pass a Senate filibuster in the current Congress.  In a previous statement on the bill, Senator Harkin asserted that he had the 60 votes needed on an undisclosed alternative bill -- but that was prior to the passing of the late Sen. Ted Kennedy (D-MA) and his replacement in the Senate by Sen. Scott Brown (R-MA).  As partisan lines have been drawn sharper since then, it may be questionable whether even some modified version of the bill could pass between now and the next Congress.  

In the run-up to the 2010 midterm elections, however, EFCA is certain to keep labor law reform in the news.

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The run-off primary election between Senator Blanche Lincoln (D-AR) and challenger Lt. Gov. Bill Halter (D-AR) is one of the primary elections most closely tracked by EFCA watchers.  Senator Lincoln prominently announced she would not be supporting cloture on the bill back in March 2009, soon after Sen. Arlen Specter (then R-PA) made a similar announcement.  These declarations were seen as the begining of the end for EFCA's prospects in 2009.  Unions and organized labor groups roundly criticized Sen. Lincoln, opening the door for Lt. Gov. Halter's challenge.  Politico now reports that Sen. Lincoln has declined to debate Lt. Gov. Halter until he states a clear position on EFCA: 

“My stand on this legislation is the reason the D.C. unions are in Arkansas spending nearly $10 million attacking me and misrepresenting my record," Lincoln said in a statement. "Arkansans know my record, and they deserve to know where Bill stands. If we are going to debate the issues, we both have to be willing to take a stand on the issues."

 

There were three debates prior to the May 18 primary, in which Lincoln edged Halter but failed to reach the 50 percent required to avoid a June 8 runoff election.  Says Politico:

In each debate, Halter has avoided a direct answer on the Employee Free Choice Act — legislation that would make it easier for workers to form unions — by saying the bill is no longer politically viable.

 

“The Employee Free Choice Act, or card check, as it has been called, is really no longer operative. If you talk to labor leaders or management leaders, that's no longer on the table,” he said during the April 23 KATV debate.

 

"Card check's not going to be brought back on the table. It's really just that simple,” he said one day later at a debate before The Associated Press in Little Rock, later adding that he supports “speedier elections and more rigorous enforcement of free elections.”
 

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As we've reported at our sister blog, EFCA Report, the early results are in from yesterday's primary contests, and this morning's talking points focus on the general anti-incumbent trend.  But others, including NAM's ShopFloor.org, have also noted it was a "Tough Night for the Card Check Crowd."

Suffering a major primary defeat was a figure central to the long-winding evolution of the Employee Free Choice Act --  five-term Democrat-turned-Republican-turned-Democrat Senator Arlen Specter of Pennsylvania. 

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The early results are in from yesterday's primary contests, and this morning's talking points focus on the general anti-incumbent trend.  But others, including NAM's ShopFloor.org, have also noted it was a "Tough Night for the Card Check Crowd."

Chief among the figures central to the long-winding evolution of the Employee Free Choice Act is five-term Democrat-turned-Republican-turned-Democrat Senator Arlen Specter of Pennsylvania.  An original co-sponsor of the 2005 Act, Specter was long viewed as a crucial "bi-partisan" vote for EFCA in the whip count.  Sen. Specter consistently expressed a strong desire to see labor law reform addressed in this Congress. Yet he was also highly critical of EFCA (and the tenor of the related debate) in both a 2007 floor speech on the cloture motion and in a Policy Essay published in the Harvard Policy on Legislation.   Then, on March 24, 2009, Senator Specter made a pivotal floor speech, wherein he declared he would vote against cloture on EFCA as drafted.  In his speech, and in an attached Appendix to his remarks, he expanded further on the various alternative avenues of labor law reform he might support.

Senator Specter's statement -- and guaranteed protection of the filibuster -- likely freed Democrats critical of the bill to state their opposition as well.  Just two weeks later, Senator Blanche Lincoln (D-AR) announced that she would not support EFCA as introduced.  Additional Democrat Senators soon too expressed reservations about the bill.

Then, in yet another interesting turn, in  late April, 2009, Sen. Specter announced that he was switching parties, and would run for re-election in 2010 as a Democrat.  At the time, he declared: "...my position on Employees [sic] Free Choice (Card Check) will not change."  But, as NAM notes today, just five months later, he told the Pennsylvania State AFL-CIO Convention:

We have pounded out an Employees Choice bill which will meet labor’s objectives. I believe before the year is out, and I will join my colleague Senator Casey in predicting, that there will be passage of an Employees Free Choice Act which will be totally satisfactory to labor.

Last night, Senator Specter suffered a substantial defeat in the Pennsylvania Democratic Party primary, losing to challenger Rep. Joseph Sestak (D-PA).  Is this really a rejection of EFCA by the voters as NAM suggests?  Maybe, but it also may be too early to tell as there were clearly a lot of other factors at work here.  It may be noteworthy that his challenger, the Democratic nominee, Rep. Sestak co-sponsored EFCA in 2007 and 2009, and voted for the measure in 2007 when it passed the House.  Interestingly, early in this Congress, he also intorduced an alternative labor law reform measure -- 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.

No further action was taken on Rep. Sestak's bill.

The other key figure mentioned above, Sen. Lincoln, appears to have narrowly finished ahead of her union-backed primary challenger Lt. Gov. Bill Halter (D-AR), but will need to compete in a run-off with Halter come June.  Lincoln has consistently opposed EFCA, drawing the ire of labor groups and consequently, the primary challenge.  EFCA and organized labor were consistently more overt issues in this race, and to NAM's point, Lincoln's victory last night despite the anti-incumbent wave may be a better indicator of anti-EFCA sentiment than the Pennsyvlania result.

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In our Weekend Round-Up this past weekend, we noted that the House Education and Labor Committee had held a hearing on April 30, 2010 in Berkeley, California for the expressed purpose of:

exploring the challenges in first contract labor negotiations by examining the difficulty of reaching a first contract agreement in negotiations between the University of California and its post-doctoral scholars’ union.

The prepared testimony of the witnesses was previously posted online.  Earlier today, the Committee made available an mp3 file of the hearing. 

While the Employee Free Choice Act itself was not an overt focus of the hearing -- NAM's ShopFloor.org blog pointed out "negotiations concerning state employees are governed by state labor laws, not the National Labor Relations Act" --  it cannot be lost on any that "Facilitating Initial Collective Bargaining Agreements" has long been one of the express goals of that proposed legislation.  We might reasonably expect some of the testimony from this hearing to be cited if and when the Congress takes up amending the NLRA again in the future in whatever form.

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Mr. Spencer's piece includes additional items regarding Department of Labor, OSHA, and Wage & Hour administration, classification of independent contractors and pending DOL regulatory actions.  You can read the entire piece here.

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In The Hill, Kevin Bogardus reports that AFL-CIO President Richard Trumka has repeated his recent assertion that proponents will secure a vote on EFCA this year, even if by tacking it on to unrelated legislation:

One victory that has eluded the AFL-CIO so far is seeing the Employee Free Choice Act signed into law. Unions have struggled to find the 60 votes in the Senate to move the standalone bill, and discussions have moved to attaching it to another piece of legislation.

“Anything we can get it attached to. There are multitudes of things we can get it attached to, and we will. We will get it done and it will be a good thing for the country,” Trumka said. “Quite frankly, I don’t know when we ever had 60 votes.”

The union leader was bullish on its chances of passage, saying there will be a vote on the bill this year and it will pass. 

ShopFloor.org reviews the prepared testimony presented at the House Education & Labor Committee's April 30 hearing, excerpting portions of one management attorney's submission:

Judging from the prepared testimony alone, the Employee Free Choice Act was not a dominant topic at a hearing Friday in Berkeley by the House Committee on Education and Labor, “Understanding Problems in First Contract Negotiations: Post-Doctoral Scholar Bargaining at the University of California.” That’s understandable, since negotiations concerning state employees are governed by state labor laws, not the National Labor Relations Act.

It will be interesting to see, once the transcript is available, whether EFCA was discussed much expressly, and to what extent proponents of the bill might use this hearing's testimony as support for their claims about first contract negotiations.  [More at our sister blog, LaborRelationsToday]

Finally, The Atlantic reports that former President Bill Clinton has recorded campaign ads for incumbent Sen. Blanche Lincoln (D-AR).  Senator Lincoln, of course, has been a notable Democrat opponent of EFCA, and labor unions have staunchly supported her primary challenger Lt. Gov. Bill Halter (D-AR).  This race is one that EFCA observers will continue to keep a close eye on.

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NLRB Decision:  Another day, another new Board decision in a 10(k) jurisdictional dispute.  In Laborers International Union of North America, Local 1184 (Highlight Electric, Inc.), 355 NLRB No. 29 (Apr. 29, 2010), Chairwoman Liebman, and Members Schaumber and Pearce, issued a Determination awarding LIUNA work claimed by an IBEW local in Riverside, California.  This is the fourth decision issued by the new Board, all by this particular three-member panel.

NLRB Election Report: Last week, the Board also posted a link to its Six Month Election Report for October 2009 to March 2010 with Cases Closed March 2010.  During the covered time period, labor unions won 63.1% of all representation elections -- 454 of 719 elections held.

First Contract Hearing:  On Friday, April 30, the House Education and Labor Committee held a hearing at Berkeley City College Auditorium entitled "Understanding Problems in First Contract Negotiations: Post-Doctoral Scholar Bargaining at the University of California."   The House Education & Labor website described the hearing as follows:

The U.S. House Education and Labor Committee will hold a field hearing in Berkeley, Calif. exploring the challenges in first contract labor negotiations by examining the difficulty of reaching a first contract agreement in negotiations between the University of California and its post-doctoral scholars’ union.

In November 2008, after three years of organizing, the California Public Employment Relations Board certified the post-doctorial scholars union at the University of California. Despite this, the University of California system and the post-doctoral scholars, represented by the UAW, have been unable to reach a first contract.

Because the hearing was held offsite, there was no webcast or video.  The prepared testimony of each witness is available online, and we look forward to reviewing and posting the transcript if and when it becomes available.  [CORRECTION: Thanks to House Ed & Labor Specialist Mike Kruger for picking up our typo.  The hearing was held by the House Education & Labor Committee -- "HELP" is, of course, the similar Senate committee.]

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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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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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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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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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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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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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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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Earlier today, President Obama announced that he would make recess appointments of nominees Craig Becker and Mark Gaston Pearce to the National Labor Relations Board.  CNN reports that White House deputy communications director Jen Psaki highlighted these appointments:

"The roadblocks we've seen in the Senate have left some government agencies like the National Labor Relations Board and the Equal Employment Opportunity Commission impaired in fulfilling their mission," Psaki wrote. "These agencies can now get back to working for the American people."

The National Labor Relations Board issued a press release announcing the moves as well::

President Barack Obama today announced the recess appointments of attorneys Craig Becker and Mark Gaston Pearce to fill two vacancies on the National Labor Relations Board.

NLRB Chairman Wilma Liebman, who has served on the Board for 12 years, welcomed the new members saying, “I look forward to beginning work with them, and especially to addressing cases that have been pending for a long time.” Three of the Board’s five seats have been vacant since January 2008. The two remaining members – Chairman Liebman and Member Peter Schaumber – have issued decisions in nearly 600 cases in which they have been able to agree. Last week, the Supreme Court heard argument in a case challenging the Board’s authority to have issued decisions with two members.

The appointment of Becker, a former Associate General Counsel for the AFL-CIO and SEIU, has been the source of much controversy.  Back in February. Democratic Senators failed to break a filibuster on Mr. Becker's nomination --with both Republicans and Democrats voting against cloture.  Republicans immediately siezed on this point tonight as Democrats attempted to paint the President's moves as necessary response to GOP obstructionism:

"The president's decision to override bipartisan Senate rejection of Craig Becker's nomination is yet another episode of choosing a partisan path despite bipartisan opposition," said U.S. Senate Minority Leader Mitch McConnell. "This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel."

Moreover, President Obama had nominated three potential members to the Board -- Messrs. Becker and Pearce, and Republican Brian Hayes.   The Senate failed to confirm any of them, although business groups and Republicans made clear that they had no opposition to Pearce and Hayes.  Yet, the President chose today to appoint only Becker and Pearce -- leaving open a fifth spot which has been vacant since December 2007.

More commentary:

• "Obama Uses Recess Appointments To Fill 15 Posts" -- Washington Post
• "A Few Other Notes About Recess Appointments to the NLRB" -- ShopFloor.org
• "Senate Gone, Obama Seats Nominees" -- Politico
• "U.S. Chamber: Becker Appointment 'Contradicts' President's Pledge to Change Washington" -- The Hill's Blog Briefing Room

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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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While the ongoing wrangling over healthcare legislation remains the major topic of the day, a few items regarding EFCA have found their way into the news cycle recently.

Senator Blanche Lincoln (D-AR), one of the most prominent Democrat critics of EFCA, is facing a primary challenge in her 2010 re-election bid.  Her challenger, Lt. Governor Bill Halter* (D) is receiving substantial support in his primary effort from the S.E.I.U. and other labor unions.  In a television ad released early this week, Senator Lincoln responds to an earlier spot by Halter, and directly takes on the issue of his union support:

(*Lest anyone miss the irony that a Senator viewed as having stopped EFCA in its tracks is running against someone named "Bill Halter," student columnist Daniel Clutchey cleverly noted it in this recent HuffPo hit piece.)

On the other hand, this week, Senator Arlen Specter (D-PA), another famous EFCA critic, received the endorsement of the S.E.I.U. in his primary contest against challenger Rep. Joe Sestak (D-PA).   In a recent endorsement, Bill George, the head of the Pennsylvania AFL-CIO also stated regarding EFCA:

That first bill’s gone and consequently, it’s time to move forward. And Arlen Specter was very instrumental with other Senators getting an agreement.

This curious statement caused NAM's ShopFloor.org astutely to ask:

What agreement?

We’ve heard a lot of discussion about a possible alternative-EFCA bill, but any proposal based on the fundamentally flawed EFCA would be devastating to employers and employees alike. If an agreement has been reached, why is nothing is available on it?

Back in September 2009, Senator Specter told the AFL-CIO that the Senate would pass a bill providing for quicker elections, mandatory interest arbitration and increased penalties against employers.  On the heels of Specter's announcement, however, Senate Democrats quickly distanced themselves from the notion that any such alternative proposal had been finalized.  Mr. George's recent proclamation may raise these questions once again.

Ironically, one year ago, while EFCA was still newly stalled in the Senate, it was Rep. Sestak who introduced alternative legislation, H.R. 1355, the National Labor Relations Modernization Act -- which would provide mandatory arbtiration, increased penalties, and equal access to employees for unions prior to elections. 

Finally, in today's IndustryWeek, Jonathan Katz asks "Is EFCA's Time Now?": 

"Typically in an election year, landmark legislation does not get passed, because the congressmen and women are more concerned about holding seats than they are necessarily about putting their reputations on the line over controversial legislation," DRI's [Reggie] Belcher says. "And EFCA is going to be controversial."

If the bill sees the light of day, it likely will be in a "watered-down form" that, for example, eliminates the card-check provision but shortens the current 42-day time period for secret-ballot elections to take place, Belcher predicts.

"That would be one way EFCA could be changed while still making union organizing easier," Belcher says. "And I think that is one of the goals of the Obama administration."

A companion piece "Obama Administration Pushing Its Labor Agenda -- EFCA or No EFCA" outlines many of the other efforts by the White House to transform American labor law.

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Online today, NPR carries a piece from the New Republic's John B. Judis entitled "Obama's Hinge Moment."  It is a partisan piece, but generally accurate in the facts the author includes.  His argument: President Obama should recess appoint Craig Becker to the National Labor Relations Board to embolden labor unions.  In describing the prolonged history of Mr. Becker's stalled nomination, Mr. Judis reports:

In his responses [to HELP Committee questions], Becker dealt satisfactorily with the principal charge against him — that he would use the NLRB to administratively enact the Employee Free Choice Act. (The measure, which labor has been unable to get through Congress, would make it easier for unions to organize workplaces.) Becker said explicitly that he would not.

Yet, Mr. Judis notes that only 52 Senators voted to invoke cloture, failing to end a filibuster on confirmation of Mr. Becker's nomination; and, during the February Congressional Recess, President Obama declined to make recess appointments.  His suggestion: 

The administration has another chance to act during the Easter recess from March 29 to April 11. Jon Hiatt, chief of staff to AFL-CIO President Richard Trumka, says his union has a "strong belief" that Obama will act then. But other labor officials, who didn't want to speak for attribution, are far less certain of the outcome. Obama's failure to make the recess appointment in February has only added to their unhappiness with the administration, which began when Obama endorsed an excise tax on the generous health insurance plans that unions have won for their members — after he had pledged during the campaign to oppose such a tax and attacked McCain for favoring one. Trumka has told several people the story of how, when he went to the White House to discuss the health care bill, the president told him that, if he was not willing to accept the excise tax, there could be no discussion. Says one person who has worked closely with the AFL-CIO and its unions, "People are starting to think it is not just Rahm Emanuel."

At the end of this month, Obama will have a chance to prove these critics wrong. It would certainly be the politically smart thing to do. Labor remains essential to the Democratic coalition, and, given that Obama cannot offer unions what they really want — the Employee Free Choice Act — he can at least mollify them with this. More than a shrewd political move, however, filling the vacancies on the NLRB is the right thing to do. It is a small agency but an important one. And, as long as it remains crippled, one of the core philosophical commitments of the Democratic Party — the idea that workers ought to have some counterweight to the overwhelming power of big business — goes unfulfilled.

As indicated in the piece, the next Congressional Recess begins March 29, 2010.

(Hat tip:  ShopFloor.org)

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The Wall Street Journal’s Kris Maher and other sources report that Vice President Joe Biden told attendees of the AFL-CIO annual winter meeting that there is still hope for the Employee Free Choice Act and a union-friendly National Labor Relations Board.

“I know it doesn’t seem like it, but we’ve come a long way in 12 months,” Biden told several hundred union officials. “In terms of the NLRB, we’re going to get it done. In the fight for EFCA, we’ve got to sit down and figure out where we go from here…. I think we’re going to get it done.

Reporting on the same speech, Michelle Amber of the BNA Daily Labor Report (subscription required), writes that the Vice President acknowledged that there was some disappointment among labor leaders. But he described the friction as “tactical differences."

Biden said the administration has not gotten “it done in terms of the NLRB,” adding, “but we are going to get it done.” Biden, however, did not elaborate.

Regarding EFCA, Ms. Amber notes that Vice President Biden told the group that the administration needs “’to figure out a strategy’ on how to get it passed.”

Mr. Biden’s audience was reportedly less enthusiastic than it was a year ago. According to Mr. Maher:

Ahead of this year’s meeting, some union presidents suggested the mood would be more contentious once union leaders had a chance to question the vice president in a closed-door session.

 

“I think they owe some answers this time,” said Thomas Buffenbarger, president of the International Association of Machinists. “There’s always something that crops up and gets in the way of labor’s agenda.”

Despite the friction, labor leaders were apparently still supportive of the administration. From the WSJ:

“The labor movement is a long way from throwing the president under the bus,” said John Gage, president of the American Federation of Government Employees. “I think we had exaggerated hopes for the Obama administration, and people are taking an objective look at where we are.”

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MLA attorneys Richard Hankins and Seth Borden co-authored a piece in today's Bloomberg Law Reports entitled "Key Remedial Elements of the Employee Free Choice Act That May Be Implemented Without Legislation."  The piece explores the likelihood of a fully-constituted National Labor Relations Board pursuing an expansion of its recent approaches to injunctive relief, civil penalties, Gissel bargaining orders, and "first contract" remedies.   The conclusion:

...EFCA proponents have argued that the extraordinary remedies discussed in this article are rarely sought by the NLRB. To date, this has largely been true. However, the NLRB has historically suffered from very tight budgetary constraints. Moreover, many would have argued that the politicization of the Board has led the agency to proceed less aggressively during Republican administrations. Those circumstances are now undergoing significant change, with increased funding from the Obama administration, and soon possibly a Board majority more sympathetic to organized labor. This new majority bloc will undoubtedly pursue expansions of all of the remedial options described above – regardless of whether or not EFCA is ultimately passed into law.

You can read the entire piece here.

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Ben Smith writes in Politico of EFCA and other legislative initiatives, "Issues tabled, left still professes hope":

The Obama White House has, through administrative action, done much to satisfy groups of supporters. The president has made record-breaking numbers of senior Hispanic appointments, for instance, and reinvigorated the agency that regulates workplace safety, a labor priority.

But legislation is another story. The Employee Free Choice Act didn't even get a mention in the State of the Union, though Obama technically supports it. Senate Democrats like Blanche Lincoln of Arkansas have appeared to bend to fierce local pressure to oppose it. Still, the unions fight on: The act is "still one of our top priorities," said AFL-CIO spokesman Eddie Vale. "[We] still think it can be done."

The union is continuing to push the legislation with state events, asking members to call and write Congress and lobbying legislators and making the case that stronger unions are part of a stronger economy.

Their allies in maintaining what is widely viewed on Capitol Hill as a fiction — that the bill has even the slimmest chance of passage this year — are the half-dozen groups spawned by the business community to fight it, whose own viability depends on their constituents' alarm.

"We can't put anything past the union bosses. They have invested half a billion dollars in the current leadership and expect a return and have said as much," said Danny Diaz, a spokesman for the Workforce Fairness Institute.

It is an approach about which Slate's Mickey Kaus tweeted:  "Now $-raising kabuki on both sides"

But in "Where There's a Bill, There's a Way," TheTruthAboutTheEFCA blog opines that labor has invested too much capital "to walk away without anything they can claim as a victory and it’s clear they are still discussing methods of attaching EFCA language to other bills."

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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 morning after the cloture vote failed on the nomination of Craig Becker to the National Labor Relations Board, harsh observations regarding EFCA's prospects from Washington Post columnist Harold Meyerson: "Under Obama, labor should have made more progress".  Calling the Obama administration's first year an "unmitigated disaster" for labor, Meyerson writes:

For the unions, the Senate's inability to pass EFCA is devastating and galling. Democratic senators had developed a compromise proposal that would have jettisoned the controversial "card check" process -- by which unions could be organized without a secret ballot -- in favor of expediting the election process (so that management couldn't delay for months, or even years, employees' votes on whether to unionize) and stiffening the penalties for violating the rules that govern election conduct.

The compromise had a shot at winning all 60 Democratic votes. The unions, which spent more than $300 million in the 2008 elections on Democrats' behalf, wanted a vote on EFCA last year, but Obama and Senate Majority Leader Harry Reid asked them to wait until health reform had passed. (Their requests for confirmation votes on NLRB appointees were similarly delayed.)

By my count, this marks the fourth time in the past half-century that labor's efforts to strengthen workers' ability to organize have been deferred by the Democratic presidents and the heavily Democratic Congresses they supported. In 1965, about the only piece of Great Society legislation not enacted was the repeal of the Taft-Hartley Act provision that gave states the power to block unions from claiming as members all the employees in workplaces where they had won contracts. In 1979, as American management was beginning to invest heavily in union-busting endeavors, the first effort to reform labor law failed to win cloture in the Senate by one vote as President Jimmy Carter stood idly by. In 1994, President Bill Clinton responded to a similar labor-backed effort by appointing a commission to recommend changes in labor law to the next Congress -- which turned out to be run by Newt Gingrich. And last year, by asking his labor supporters to wait, Obama ensured -- unintentionally, of course -- that the next effort to revive organizing must wait until the next overwhelmingly Democratic Congress.

With the recess appointment of Becker still a viable option for the White House, the President's ability to issue Executive Orders, and the possibility of additional discussions regarding an alternative EFCA bill, it certainly might not yet be as final as that.

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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:

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The NAM_Shopfloor and Senatus twitter feeds are reporting, and media outlets are confirming, that the cloture motion to end debate on Craig Becker's nomination to the National Labor Relations Board has failed by a 52-33 margin.  As everyone seems to know nowadays, 60 votes are required to end a filibuster.

Observes NAM:  "Even with snow, a little surprised at small vote."

Boston's WBZ-TV's website notes:

The task for Democratic leaders turned more difficult when at least two Democrats joined Republicans in opposing the lawyer.

Nebraska Senator Ben Nelson was one such Senator, consistent with reports last night.  Politico reports that Sen. Blanche Lincoln (D-AR) also voted against cloture.

What now?   A recess appointment of Mr. Becker by President Obama remains a politically charged possibility.  A recess appointment made soon would serve until the conclusion of the next Senate session in late 2011. 

More commentary:

• "Becker Labor Board Nomination Held Up After Senate Cloture Vote" -- BusinessWeek
• "Obama Warns GOP He Will Use Recess Appointments" -- Huffington Post
• "Craig Becker Nomination Defeated as Cloture Vote Fails" -- FireDogLake
• "AFL-CIO Goes After Nelson For 'Hypocrisy' On Becker Nomination" -- The Hill 
• "Senate Prevents Confirmation Of Controversial Labor Nominee" -- ShopFloor.org

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

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

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

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

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

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

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

* drastically shorten the time frame for holding union elections;

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

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

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

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

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

Other commentary on the issue:

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

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

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

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

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

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

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

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

(h/t: WorkforceFrdm's Twitter feed)

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

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

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

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

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

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

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

Among the notable quotables highlighted by ShopFloor:

• Workforce Management:

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

• The Nation:

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

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

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

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

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

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

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

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Bloomberg News reports:

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

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

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

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

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

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

(Hat Tip:  NAM's Twitter Feed)

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

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

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

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

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

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Bloomberg News today runs a report "'Stay Union-Free' Pushed by Target, Michaels as Obama Law Looms."  There is no real new information in the piece, but the following passages refer to the current approach of the retailers mentioned in the headline:  

Minneapolis-based Target, the second-biggest U.S. discount retailer, updated its anti-union video for employee training to explain the consequences of the bill, company spokeswoman Donna Egan said in an e-mailed statement.

“If proposed labor relations legislation is adopted, allowing third-party involvement or interruptions to our business, our business could be impacted,” Michaels Stores of Irving, Texas, the world’s largest arts-and-crafts retailer, said in its earnings filing this month.

As long noted, once the debate over healthcare legislation is completed, the Congress is expected to take up EFCA once again.

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At the Huffington Post, Sam Stein reports on Labor's current view of the administration in "Big Labor, Big Concerns: Obama's Approach Causing Tension."  Set against the AFL-CIO's and SEIU's activities in the healthcare legislation deabte, the piece notes Labor's frustration with the President's "punting of the Employee Free Choice Act until 2010."  Notes Stein:

Labor leaders are loath to publicly criticize Obama, in part because they remain acutely aware of the benefits of staying in his (and WH chief of staff Rahm Emanuel's) good favor. But in private, there is a growing "frustration," as one union official put it. And as it became clear that the Senate was settling on a health care bill that taxes high-end plans (which cover many union members as well as other workers) and includes no additional government-run plan for insurance, a hint of that frustration seeped to the surface.

"What I want the president to do is to work with the conferees on the issues that he has said from the very beginning are important to him and say we have a chance to get some of those done, particularly the ones that relate to making sure that people who don't have insurance will be able to afford what is made available," SEIU President Andy Stern declared in a conference call this past week. "We need his moral suasion. We need his personal involvement and we are totally convinced that what we want done is what he wants done. And all we can do is maximize the effort."

Implicit in the remark was that, up to this point, Obama had provided neither the "suasion" nor "involvement" needed in the debate. It was hardly the most controversial of statements. Indeed, Sen. Russ Feingold (D-Wisc.) echoed the sentiment days later. But coming from Stern -- the closest of the president's labor allies -- it was, as one union hand pointed out, "hard to dismiss."

Elsewhere, both the SEIU and the AFL-CIO delcared the U.S. Chamber of Commerce the "Scrooge of the Year," reporting on the "award" bestowed by union 501(c)(3) group, Jobs With Justice:

The Chamber has spent millions of dollars lobbying against legislation that would benefit workers and families like the Employee Free Choice Act....

The Chamber tweeted it's acceptance speech:

Union group names us "Scrooge of the Year" -- here is hoping we get it again in 2010 for more #efcafail (@jwjnational)

And The Truth About The EFCA blog links to this thorough 2009 re-cap of legislative opposition to the Act prepared by the House Committee on Education and Labor Republicans: "A Year's Worth Of Reasons Not To Enact EFCA."

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Yesterday, Politico suggested that supporters of EFCA might find some renewed sense of optimism as Congress moves beyond the healthcare debate in 2010.  That optimism was equally reflected in AFL-CIO President Richard Trumka's declaration that the labor movement "will pass EFCA."

Today, however, The Hill is reporting on an interesting legislative strategy development regarding the House of Representatives:

Speaker Nancy Pelosi (D-Calif.) has privately told her politically vulnerable Democratic members that they will not vote on controversial bills in 2010 unless the Senate acts first.

After a year of bruising legislative victories that some political analysts believe have done more to jeopardize her majority than to entrench it, Pelosi is shifting gears for the 2010 election.
 

Specifically about the impact on EFCA:

Pelosi’s promise could dim the prospects for other White House priorities as well, including the Employee Free Choice Act (EFCA) — known as “card check” — and the repeal of the “don’t ask, don’t tell” prohibition on gays serving openly in the military.
 

“There’s not going to be a ton of stuff legislatively next year either way,” a House leadership aide said. “But on EFCA — even though the House has demonstrated its ability to pass it — and on Don’t Ask, Don’t Tell, the Senate is definitely going to have to act first.”
 

The House passed EFCA during the last Congress, but members who voted on that bill were well-aware it had no chance to be signed into law by President George W. Bush.

Now, this isn't a totally new development regarding a "Senate First" approach to EFCA, as House Majority Leader Steny Hoyer (D-MD) announced the likelihood of letting the Senate lead on the issue back in March 2009.  Still, bloggers and internet news services on all points of the political spectrum have responded.

NewsMax reports that union leaders are frustrated with the Obama administration:

Congress has shown no urgency to act on the bill that would make it easier for unions to organize: the Employee Free Choice Act.

Even after Congress is done with healthcare, there’s no guarantee it will act on the union bill. That’s because moderate Democrats may oppose it, especially with the 2010 elections looming. 

FireDogLake questions the strategy:

It’s true that the House has taken the first bite on a host of bills this year, from education to health care to climate change to financial reform, passing basically a substantial chunk of the Obama agenda, with little to show for it. So the Senate does need to walk the plank every now and again.

But consider the leftover items here – immigration reform, labor law reform (Employee Free Choice Act), gay rights (DOMA and DADT repeal), budgetary issues which include taxes, etc. How broadly do you define a “tough vote”? And what will the House then do while waiting for the Senate to act on all of this?

And some, like Harper's Magazine's Ken Silverstein aren't placing all of the impetus on either the House or Senate:

Even less convincing is the argument that Obama can’t get anything done because of a weak Democratic congress. Fine, it’s a lousy congress, but the president sets the tone and signals his priorities. As I noted yesterday, Obama was a big backer of the Employee Free Choice Act (EFCA) when on the campaign trail (when he needed union votes). He’s barely mentioned it since taking office, and so that central demand of labor has gone nowhere. That’s not all the fault of Congress.

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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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Just Labour: A Canadian Journal of Work and Society is published by York University's Centre for Research on Work and Society (CRWS).  An editorial committee of academics and union officials puts the journal out a few times a year.  The most recent edition is dedicated entirely to the Employee Free Choice Act, and more specifically, the representation of the Canadian card check experience in connection with the debate.  Just Labour explains its intent is to: 

provide a more balanced and factual representation of Canada’s labour market experience (including the role and effectiveness of collective bargaining structures here) than has been forthcoming so far in the highly politicized U.S. debate.

The volume contains a pro-union “Open statement by Canadian scholars on unionization and the economic and social well-being of Canadians,” and numerous academic pieces divided into three sections. The first section contains articles which review the study released by Dr. Anne Layne-Farrar in March 2009 which suggested that EFCA would drive up unemployment in the U.S. The second section includes two articles on Quebec’s experience with card-check and first-contract arbitration. The third section contains five additional pieces regarding the links between unionization and other socio-economic concerns in the Canadian context.

This volume is certain to play a role in the debate over American labor law reform once the conversation resumes.

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During a panel discussion yesterday, SEIU President Andy Stern told the audience that next year Democrats will need to decide whether they will seize upon their super-majority to pass legislation like EFCA or not:

"The Democrats really have a historic and decisive moment, for anybody who runs a business there are moments where you sort of make big choices," Stern told the audience. "They have 60 votes for the first time and probably the last time they're gonna have it. They have to decide if they are an army of one or an army of 60."

Mr. Stern seemed less than optimistic, however:

"They just have to decide, if not I think they're going to miss a historic moment that won't come back for a very long time," Stern said. "And so far I wouldn't bet with them."

Likewise, in Las Vegas, at the Global Gaming Expo, UNITE-HERE President John Wilhelm struck a skeptical tone:

"There is no possibility it comes up in the Senate this year,” said Wilhelm, also the onetime leader of the Culinary Union. “Whether it comes up next year is open to question, and whether it gets 60 votes in the Senate is open to question.”

He added: “I support it. But I don’t regard it as a magic bullet.”

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At Findlaw, Cornell Law Professor Michael Dorf asks the question: "Is There a Constitutional Right to Sign a Petition Anonymously?"  Professor Dorf notes the recent decision in Doe #1 v. Reed, wherein the Ninth Circuit held that 100,000 people who signed a petition in Washington state had no constitutional right to protect their identities from becoming known by the general public.  Calling it a "difficult" question, the Professor concludes that it might be more prudent to deal with the matter as a policy issue, noting "a regime of public disclosure of petition signers could have a powerful chilling effect on political participation by people holding unpopular views."

Professor Dorf notes the widespread preference for the secret ballot in public elections, yet observes:

But, of course, widespread or even universal adoption of a practice does not necessarily render that practice constitutionally obligatory. Early votes were not cast anonymously, and if the Court were to say that the First Amendment requires the secret ballot, then that ruling could cast doubt on other electoral systems that use various forms of public voting.

Consider the proposed Employee Free Choice Act, which would permit certification of a union as the representative of workers in a bargaining unit without a secret ballot (although a secret ballot could still be used). Is the proposed Act unconstitutional? And what about corporate governance laws, and other laws that permit or require people to cast their votes or otherwise state their opinions without the protection of anonymity. Are they also unconstitutional?

Perhaps the most dramatic denial of anonymity is that effected by the Sixth Amendment, which—except in extraordinarily rare circumstances—requires crime victims to testify in open court in the face of those who wronged them. A Supreme Court ruling that any reasonable fear of intimidation or harassment triggers a right to anonymity could thus have far-reaching consequences.

An interesting column well worth a read.  And should the Supreme Court take up the Doe petition, its decision would have an impact on the legal challenges that EFCA may face if it passes including a card check provision.

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Over the last few months as the House and Senate have turned just about the entirety of their attention to healthcare insurance legislation, the winds previously swirling about the Employee Free Choice Act have calmed considerably.  In a recent Wall Street Journal interview, new AFL-CIO President Richard Trumka called it "the best stall that we've ever had," asserting "we're going to get healthcare done" first and then turn full attention to passing EFCA.  Melanie Trottman reports:

Once the health care bill is passed (Trumka is confident it will become law), unions will move immediately to EFCA, a bill they’ve been forced to push to the back burner while health care dominates the spotlight. Unions say they need the so-called “card check” bill to make sure workers can join unions without employer intimidation. They’re also keen on a provision that would allow government arbitrators to quickly settle stalled labor contract disputes.

Business trade groups are prepared to continue fighting the bill which they say would unjustly force contract terms and allow unions to intimidate employees into joining.

Elsewhere:

• in the Cleveland Plain Dealer, columnist MIchael Smerconish highlights former Rep. Dede Scozzofaza's (R-NY) support for EFCA as one of the prime reasons many conservatives and Republicans withdrew their support for her, effectively handing New York's 23rd district to the Democrats for the first time in decades.
• In the Houston Chronicle, Fisher & Phillips partner Kevin Troutman identifies elements of the pending healthcare legislation that will drive up unionization, even as EFCA idles. 
• In the Wall Street Journal, earlier this week, Kris Maher reported on various efforts to enact elements of EFCA and speculated EFCA compromise propositions in various states.  (For our earlier coverage of similar state efforts, see posts here and here.) 

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That seems to be a question being asked by many people following the Senate consideration of President Obama's three nominees to the National  Labor Relations Board.  On Wednesday, the Senate H.E.L.P. Committee approved the nominations.  While the nominations of union attorney Mark Gaston Pearce and Republican Senate Committee policy director Brian Hayes were approved unanimously, eight of the twenty-three Senators voted against moving SEIU attorney Craig Becker's nomination forward.

Immediately following the Committee's vote, Sen. John McCain (R-AZ) placed a "hold" on Mr. Becker's nomination.  While editorializing on the Senator's intent, a piece in the anti-corporate publication In These Times identified some of the concerns being expressed about Mr. Becker thus:

As a legal scholar, Becker helped lay the intellectual foundation for the Employee Free Choice Act.

In one law review article, he suggested that much of the work of EFCA could be done through the existing regulatory structure. The NLRB administers the National Labor Relations Act, the primary legislation that governs labor/management relations.

Of course, the author in this case is clearly sympathetic to this course of action.  (In an interesting concluding note. she also suggests that Sen. Harry Reid (D-NV) might force the confirmation vote over McCain's hold, and that Democrats would likely prevail on a cloture vote on the confirmations -- all perhaps as soon as October 27.)

That Mr. Becker and allies on the Board might implement elements of the Employee Free Choice Act -- with or without the bill's passage by the Legislature -- is indeed one issue that has been raised by many critical of his nomination.  Both the U.S. Chamber of Commerce and the National Association of Manufacturers have sent letters to the Senate H.E.L.P. Committee expressing this concern.  Ranking Member of the Committee, Senator Michael Enzi (R-WY) acknowledged as much in his released statement the morning of the votes:

While I support moving the package forward as the Chairman and Ranking Member have done in previous Congresses and Senator Kennedy and I did back in 2006, I do have some serious concerns with Mr. Becker’s writings – particularly the potential for radical changes in labor law he has advocated, and argued can be implemented, without Congressional authorization.

Likewise, Committee Chair Sen. Tom Harkin (D-IA), who has resisted calls for a confirmation hearing on Mr. Becker's nomination, addressed the issue:

"As an academic Mr. Becker has written extensively on a variety of legal topics. He has taken a critical approach to existing law and pushed the boundaries of convention in his field. It’s clear, however, that he understands and respects the distinction between being an intellectual advocate and serving as an adjudicator on the Board. He is fully aware that as a member of the Board his role will be – and I quote from his responses to the Committee’s questions here: – to 'implement Congress’s intent as expressed in the law, to fairly consider all views … to deliberate with my fellow Board members, to utilize the wealth of knowledge and experience possessed by the Board’s career staff, and to fairly and impartially decide cases based on the relevant facts and applicable law.'

We will continue to follow these developments and report on them here.

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The Wall Street Journal, Associated Press, and Crain's Workforce Management report that Senator John McCain (R-AZ) placed a "hold" on Craig Becker's nomination to the National Labor Relations Board, blocking Senate confirmation, notwithstanding approval by the Senate HELP Committee.  From the WSJ this afternoon:

Becker’s nomination to the NLRB, which supervises union elections and referees disputes between employers and employees, has been a matter of dispute for months. The U.S. Chamber of Commerce has repeatedly pressed for a HELP Committee hearing, citing concerns about Becker’s writings on the labor law he’d help interpret if confirmed to the board. The business group says Becker’s written positions have been well outside the mainstream and they fear he’d disrupt the “delicate balance” in current labor law to disadvantage employers.

McCain voiced similar concerns in a letter to HELP Committee Chairman Tom Harkin of Iowa, also seeking a hearing. McCain wrote that Becker’s writings “indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” McCain added that he wanted a chance to question Becker about these positions in person and in public. Today’s 15-8 vote was taken without a hearing.

The HELP Committee also unanimously approved two other NLRB nominees, Mark G. Pearce, a Democrat and an attorney who represents unions, and Republican HELP Committee staffer Brian E. Hayes.

NAM's ShopFloor.org blog has additional comment in its post, "SEIU Attorney Craig Becker’s Nomination for NRLB Clears Committee."

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President Obama's three nominees to the National Labor Relations Board are headed Wednesday for a Committee vote by the Senate Health, Education, Labor and Pensions Committee.  Our observations about the climate in The Hill today: 

As card-check has stalled in Congress, business groups’ attention has increasingly turned to the administration, which has taken more action on labor’s priorities, according to Richard Hankins, the head of McKenna Long & Aldridge’s labor and employment practice.

“The shift in labor policy toward labor’s agenda is in these other areas right now,” said Hankins, who has represented employers before the NLRB.

We have previously noted the controversy which Mr. Becker's nomination has generated.  Likewise, as the Committee readies itself for action on the nomination, The Hill notes:

Like business groups, Senate Republicans on the HELP Committee have criticized Becker, much more than the Democrats’ other NLRB nominee, Mark Pearce, a Buffalo, N.Y., lawyer who practices labor law. Since their nomination by Obama in April, Becker has received close to 300 questions from GOP panel members, much more than the roughly 30 sent to Pearce, according to committee aides.

It is highly unusual for an NLRB nominee to receive a public hearing. The last such hearing was in 1993, according to one committee aide.
 

Hankins said board nominees are typically packaged together for Senate approval and win confirmation after closed-door negotiations between lawmakers.  “It is rare to have public hearings because of those dynamics and the opportunity to make a political deal,” Hankins said.

We will report the Committee's action tomorrow.

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State Bill Colorado and Boulder's Daily Camera report that on Tuesday, the Colorado Supreme Court ruled that three state ballot initiatives opposing provisions of the federal Employee Free Choice Act may proceed under state law.  The Court held that consideration Initiatives 22, 23 and 24, which would amend the Colorado Constitution to preserve the right to a secret ballot in employee representation elections, does not violate the state election law's "single subject rule."

An AFL-CIO lobbyist, Philip Hayes, filed a challenge to the initiatives but the Court ruled that they were fair under the state law:

Hayes contends that the Initiatives contain more than a single subject in violation of article V, section 1(5.5) of the Colorado Constitution. Specifically, Hayes asserts the Initiatives seek to establish both a general right to secret ballot voting in all voting situations, and a more narrow right to secret ballot voting in employee representation elections. However, Hayes’ reading of the Initiatives focuses on one sentence and ignores the context supplied by text on either side. Upon reading the Initiatives as a whole, we conclude the Initiatives carry out only one general purpose. Thus, we hold the Initiatives do not violate the constitutional prohibition on multiple subjects.

Thus it seems the voters of Colorado may have the opportunity to vote on these initiatives in a state election, if the federal government passes a version of EFCA containing card-check provisions.

As we noted earlier this year, the many efforts underway to invalidate EFCA provisions by state constitutional amendment will face many legal hurdles -- not the least of all, federal preemption.  But at least one such effort, in Colorado, appears to have cleared the first significant challenges inside the state.

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An Op-Ed in today's New York Post reported that many labor unions hate the so-called "Baucus bill" on healthcare insurance which passed a vote in the Senate Finance Committee earlier today.  The editorialist, however, suggested that these unions were conflicted on how strenuously to voice their displeasure at the risk of squandering political capital with the Democrats in Congress:

Why, then, aren't the unions screaming in opposition to Baucus' "compromise"? There's not even a giant, inflatable "Scabby the Rat" in front of the senator's office . . .

It's because the unions don't want to double-cross their friends on Capitol Hill. If Big Labor pushes too hard for a public option, it might get the blame for killing health-care reform with a "poison pill." And if they zap the Cadillac tax, they'll rip out an estimated $201 billion in revenue -- leaving "reform" unquestionably a budget-buster.

The unions can't afford to be seen as killing ObamaCare. They need to be team players so their Democratic allies will still push for other union priorities like the Employee Free Choice Act (a k a card-check).

Update (6:45 p.m.):  It does not appear the labor unions will swallow their displeasure with the bill after all:

• "Unions to oppose Baucus bill" -- The Hill's Blog Briefing Room
• "Unions will oppose Baucus bill unless it's changed" -- Associated Press
• "Labor unions plan ads to counter Baucus U.S. healthcare bill" -- Bloomberg

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On Tuesday, September 29, 2009, on behalf of the National Labor Relations Board, the U.S. Solicitor General petitioned the Supreme Court for certiorari in two cases which address whether the Board can continue working with three of its five seats vacant. Earlier this year, in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, the D.C. Circuit Court of Appeals ruled that decisions issued by the “two-member Board” were invalid because the law does not permit the board to act without at least three members. This caused a split with the decisions of three other Circuits — the First, Second and Seventh — which have reached the opposite conclusion.

The Board’s petition urges the Supreme Court to resolve the split. As reported by the Associated Press, “[t]he uncertainty has thrown into question more than 400 decisions that clarified the rules of union organizing or decided whether there was merit to claims of unfair labor practices.”

While the issue proceeds toward probable Supreme Court resolution, the Board continues to act with only two members -- Democrat Chairwoman Wilma Liebman and Republican Member Peter Schaumber.  Back in April 2009, President Obama indicated that he would nominate union lawyers Craig Becker and Mark Gaston Pearce to the Board.  It was not until he announced his third intended appointee, Brian Hayes, in July that he actually officially nominated them. 

Partisan gridlock -- which emerged in the 110th Congress on this issue when these seats opened late during the Bush administration -- has continued to preclude confirmation of any appointees.  And in July, the Chamber of Commerce sent a letter to the Senate Health, Education, Labor, & Pensions Committee asking for a thorough hearing on Mr. Becker's nomination.  The Chamber asserts that Mr. Becker, a former assistant general counsel of the Service Employees International Union (SEIU), has "extreme" and "unconventional" views of the National Labor Relations Act.  Some have speculated that a Board controlled by Chairwoman Liebman, and Messrs. Becker and Pearce would pursue not only frequent reversals of Board precedent on numerous issues, but also to impose elements of the Employee Free Choice Act by administrative regulation. 

Just before the last Congressional break in August, we speculated that President Obama might make recess appointments to place these three on the Board without Senate confirmation.  With no sign of confirmation proceedings currently on deck, and the Senate's "target adjournment date" of October 9, 2009 looming, this prospect seems even more plausible.  The healthcare debate may extend the congressional calendar significantly, but in the absence of some eleventh-hour political compromise on confirmation, it seems the President will face the prospect of making recess appointments or continuing to accrue risk as the Laurel Baye case makes its way toward eventual Supreme Court resolution.

More on this issue:

• "NLRB asks Supreme Court to rule on decisions by 2-member board" --PointOfLaw.com
• "NLRB Seeks Cert on Two-Member Board Issue" -- Workplace Prof Blog
• "Laurel Baye cert. petition filed by NLRB" -- NOLA Employers Blog

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

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

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

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

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

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

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

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

Other remarks from the piece:

• Senator Carper:

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

• Senator Harry Reid (D-NV):

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

• Senator Dick Durbin (D-IL):

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

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

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

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

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

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

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

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

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

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

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

 More coverage:

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

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

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

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

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

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

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

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

More coverage:

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

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

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

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

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

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

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

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

More on these events:

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

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

From a talk with AFL-CIO President John Sweeney:

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

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

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

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

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

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

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

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

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

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

Mr. Sweeney voiced optimism that the bill would pass.

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

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At Jottings By An Employer's Lawyer, Michael Fox comments on our earlier post about Senator Reid's comments to the Las Vegas Chamber of Commerce.  Among his astute observations:

The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.

Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.

At Workplace Prof Blog, Professor Richard Bales links to the SSRN posting of George Mason University Professor Harry Hutchinson's article, "Employee Free Choice or Employee Forced Choice?  Race in the MIrror of Exclusionary Hierarchy."   The abstract suggests that EFCA would have a racially discriminatory impact:

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of the Progressive movement that dominated so much of American intellectual life during the first third of the twentieth century. As it was widely acknowledged at the time, the NLRA was revolutionary in its implications for American Labor Law. Less widely recognized were the adverse effects of this and other New Deal statutes on people of color. Readily available evidence shows that President Roosevelt’s insistence on raising the price of labor (1) increased unemployment and human suffering, and (2) also widened the unemployment gap between blacks and whites. Today, this wide, if not widening, unemployment gap remains in effect. Properly appreciated, the consequences of the New Deal for African Americans persist as an important and under-examined issue. It is likely that neither Progressive Era labor legislation nor contemporary efforts to further transform the labor market operate in the best interest of African American citizens. Provoked by the assertion that labor faces a legal crisis and the claim that the statutory right to organize is a sham, energized by the contention that the union movement ought to reinvent itself as a robust engine of collective insurgency against globalization, class-based injustice, and asserted increasing disparities in income, labor union advocates and hierarchs have offered a number of ideas that include the necessity of acting like a genuine rights movement, encouraging open source unionism, and creating alternative (nonunion) worker organizations.

One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate the necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize the workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This paper deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to show that rather than embracing freedom for workers, eliminating poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.

Finally, although it is not entirely clear what Senator Arlen Specter (D-PA) intends to do regarding EFCA when deliberation resumes -- and indeed it seems he continues to walk a tight-rope on the issue -- labor lobbying group American Rights at Work has launched an ad campaign "thanking" the Senator for his "reversal" on the bill.  Per The Hill:

The American Rights at Work ad says Specter "listened" to that group in crafting his stance on the card check bill, a union organizing bill strongly supported by organized labor, and tells viewers to "thank Senator Specter and make sure he keeps listening."

The ad will run on national sites like the New York Times, Washington Post, and MSNBC websites, as well as several prominent political sites in Pennsylvania: Philly.com, PoliticsPA.com, KeystonePolitics.com, GrassrootsPA.com, and YoungPhillyPolitics.com.

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Roll Call reports that Senate Majority Leader Harry Reid (D-NV) said Thursday that passing EFCA is no longer a priority for the Senate this year:

Speaking at a Las Vegas Chamber of Commerce, Reid said the chamber’s schedule is too crowded to consider the Employee Free Choice Act, otherwise known as “card check.”

"We have too many other things on our plate,” Reid said.

But even if the Senate’s schedule was freed up later this year, it is unlikely Reid would bring the bill to the floor short of major changes to the legislation. Republicans have universally panned the bill — as have a few Democrats — making it impossible for Reid to break a Republican filibuster.

The Roll Call piece refers to this Las Vegas Review Journal article covering Reid's address to the Las Vegas Chamber of Commerce.  It would seem that Reid's comments confirm recent speculation reagrding the timing of EFCA's treatment in the Senate.  Earlier this week, the AFL-CIO's Richard Trumka indicated the White House said they would not push EFCA until at least after the Senate resolved the current healthcare debate.  Senator Russ Feingold (D-WI) subsequently suggested that might not happen before the end of the year.

The passing of Senator Kennedy (D-MA) this week further complicated the timeline for EFCA's consideration as it reduces the Democrat caucus in the Senate to 59 votes under the best of circumstances to pursue cloture on any particular piece of legislation.  While there are some in Massachusetts now pursuing a politically-motivated amendment of state law, the statutes -- amended in 2004 to prevent then Gov. Mitt Romney (R) from filling Sen. Kerry's seat (D-MA) if he won the Presidency -- currently prohibit the Governor from appointing a replacement to the Senate.  A special election must be held between 145 and 160 days after the vacancy -- or not before late January 2010.

It remains to be seen whether the House will proceed with consideration of the bill this year, if for no other reason than to force candidates for office in 2010 to take a position.

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The nation awoke this morning to the sad news that long-time Democratic Senator from the state of Massachusetts, Edward "Ted" Kennedy had passed away, succumbing to his battle with brain cancer.  Among other things, Kennedy was consistently the chief sponsor of the Employee Free Choice Act in the Senate, although his illness this year resulted in the bill's stewardship by Sen. Tom Harkin (D-IA). 

EFCA remains deeply flawed legislation, and as an issue on which so many have devoted so much time to counting votes in the Senate, the Senator's passing certainly raises complex political questions regarding how and when his seat will be filled.  But those are issues best left for discussion another day.

Today is more appropriately a day for rememberance:

• "Sen. Kennedy's Life and Career, 1932-2009" -- Washington Post
• "Tributes for Senator Kennedy" -- Boston Globe
• "Republicans Join Democrats in Mourning Kennedy" -- WSJ "Washington Wire" blog
• "Ted Kennedy Reactions" -- Huffington Post
• "Senate loses liberal lion: Kennedy dead at 77" -- The Hill

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The Hill's Blog Briefing Room reports that AFL-CIO Secretary-Treasurer, and expected future federation President, Richard Trumka has told a liberal blog's webchat audience that President Obama and White House Chief of Staff Rahm Emanuel will not advance EFCA until after healthcare reform is done in Congress:

"The President/and Emanuel have both said they dont intend to bring Employee Free Choice Act up until Health Insurance Reform is done," Trumka wrote on the blog. "Which gives us an additional reason to do Health Insurance Reform now!"

Other notable remarks by Trumka included: 

"We WILL PASS EMPLOYEE FREE CHOICE ACT legislation, we will not allow our 'friends' to pass on this essential part of an economic recovery solution!" he said.

The labor leader also encouraged activists to "move the process along" in Massachusetts to ensure a quick successor for Sen. Ted Kennedy (D-Mass.) in case of an absence, to fill his seat with a reliable 60th vote for cloture on the "card check" bill.

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At the Liberty Live blog, Scott Dilley posts this C-Span video of Senator Arlen Specter (D-PA) appearing to change course on the issue of cloture on EFCA:

Senator Specter has certainly seemed a good deal more erratic in his public pronouncements on the issue since his announcement that he was switching parties concluded:

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.

Just last week, for example, at a Town Hall meeting, he told a vocal opponent of the bill that the secret ballot must remain a part of the process, that Senators were still addressing the issue of mandatory interest arbitration, and that ultimately "people will ... have an opportunity to understand what the issue is."

Senator Specter seems to be equivocating a bit nowadays, perhaps due to an evolving position, or perceived electoral pressure on both flanks.  But it is also fair to note that throughout most of his early commentary on the bill, he always left open the likelihood that he would support some version of the bill:

The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. 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.

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While Healthcare Reform seems to be dominating both the news cycle and the public consciousness recently, there are apparently still at least a few citizens concerned about EFCA.  At a town hall meeting earlier today, Senator Arlen Specter (D-PA) was met by a man who passionately expressed frustrations about EFCA.  (See video below.)  The Senator's initial response:

That bill is in the process of being negotiated.  There will not be a timeline which will be so fast that people will not have an opportunity to understand what the issue is."

Curious...  One might suggest that Senator Specter carefully parsed his words here to imply that "quickie elections" would not be a part of the "negotiated" bill.  On the other hand, given the context of the speaker's commentary, it may be that the Senator means that anything is still possible in the bill, but that the public will have "an opportunity to understand" the version of EFCA that is ultimately brought to the floor (contrary to the suggestion of some Democratic staffers not long ago).

Other points which the Senator addressed a little more directly:

• "I think we have to maintain the secret ballot"

• "We're trying to work thru the other facet of it on arbitration on last best offer, but we're bearing in mind the concerns and the worries you've raised."

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With Congress now off on recess, and much attention turned to the President's healthcare agenda, the debate over the Employee Free Choice Act has grown quiet the past week or so.  In today's Wall Street Journal, Melanie Trottman writes "For Labor, Small Shifts, Big Wishes":

Labor unions, big backers of the president in the election, are still waiting for the big payoff.

Unions say Congress and the Department of Labor are making good on Obama promises to strengthen labor laws. Labor got the Lilly Ledbetter Fair Pay Act, a bill Mr. Obama signed early this year, to give workers more time to sue employers for wage discrimination. The stimulus bill extended unemployment benefits and allocated money for infrastructure projects that will employ union workers.

The government rescues of unionized auto makers General Motors Co. and Chrysler LLC salvaged more for United Auto Workers union members than they likely would have received under a normal bankruptcy process.

But President Barack Obama and congressional Democrats haven't been able to deliver on one of labor's top priorities: passage of a bill that would make it easier for unions to organize more workers.

The Employee Free Choice Act is stalled in the Senate because of opposition from Republicans and moderate Democrats, plus many employers who say it would cost them money and in some cases force them to move operations overseas.

Faced with a tough fight over his health-care plan, Mr. Obama so far hasn't put much muscle behind passing the free-choice bill.

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Kris Maher writes in today's Wall Street Journal that "Odds of a Vote Dim for Card-Check Bill":

Further complicating the bill's chances this year are the serious illnesses of Sens. Edward Kennedy and Robert Byrd -- both strong labor supporters -- and doubts about whether the two would physically be able to attend a floor vote. Democrats would need both of them to marshal the 60 votes required to thwart a likely Republican-led filibuster.

"They don't have the votes without those two guys coming to the floor at this point," said a person familiar with Democratic leaders' thinking.

Peter Francia, a labor and politics expert at East Carolina University in Greenville, N.C., said, "Without 60 votes, EFCA will not move forward and is likely to face delays into 2010."

In The Hill, Kevin Bogardus suggests that the NLRB Members that President Obama seeks to have appointed -- whether by Senate confirmation or recess appointment -- "worries business":

Business advocates fear the NLRB, at its full capacity and run by Democrats for the first time in eight years, will vote against their interests in favor of unions. Of particular concern is that the board will try to implement parts, if not all, of the Employee Free Choice Act (EFCA), or card-check, which makes it easier for employees to organize.

“If they can’t get the Employee Free Choice Act passed, is this Plan B to have someone confirmed to the board who will take an aggressive stance with the law and try to implement it through the machinery of the board?” said Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce. Business advocates fear the NLRB, at its full capacity and run by Democrats for the first time in eight years, will vote against their interests in favor of unions. Of particular concern is that the board will try to implement parts, if not all, of the Employee Free Choice Act (EFCA), or card-check, which makes it easier for employees to organize.

“If they can’t get the Employee Free Choice Act passed, is this Plan B to have someone confirmed to the board who will take an aggressive stance with the law and try to implement it through the machinery of the board?” said Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce.

Regular EFCA Report readers will recall our April 2009 posts that outlined areas where we believe the Obama NLRB will seek to reverse precedent:

• "What to Expect from President Obama's NLRB"
• "What to Expect from President Obama's NLRB (Part II)"

TheStreet.com today carries an interesting piece, ""Labor Law Debate Closely Watched," regarding the way unions representing transportation workers under the Railway Labor Act view the developments regarding EFCA.  The piece quotes Robert Roach, general vice president of the International Association of Machinists, extensively:

"If the law is changed under the National Labor Relations Act, that will fuel a debate we are having regarding the RLA election process, which currently is unfair," Roach says. "The RLA is governed and administered by the National Mediation Board, which at some point could alter its regulations. So the Employee Free Choice Act is important because it will help to form that debate, as to what changes if any could be made.

"To start that process, we would have to petition the board to make changes," he says

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Congress Daily, a subscription service of National Journal, reports this morning that efforts to pass a compromise version of “the Employee Free Choice Act have been put firmly on the chamber's back burner -- perhaps for the rest of the year -- as senators, aides and lobbyists focus on health care and other legislation.” The report, by Dan Friedman and Carrie Dann, quotes Sen. Tom Harkin (D-IA) as saying: "We're not doing anything right now." Sen. Harkin has been the lead Senate advocate for EFCA while Sen. Edward Kennedy (D-MA) is recovering from medical issues. The report asserts that the group working on compromise language has not met in two weeks and is not likely to do so before the August recess. As for action on EFCA after the recess, the writers note quote Sen. Harkin as saying: "We've got the healthcare bill; we've got appropriations bills, and we're lacking two senators that we need right now."

As we noted yesterday, unnamed aides to some Senate Democrats have hinted that Senate Majority Leader Harry Reid (D-NV) may be planning a maneuver where a compromise bill is introduced and rushed through “before anyone can mobilize against it."  Mr. Friedman and Ms. Dann noted that such a strategy was rumored, but cited their own unnamed aides as offering: “that prospect is not likely soon.”

According to Mr. Froiedman and Ms. Dann:

Labor sources say union leaders are meeting regularly to discuss potential compromise language but conceded the absence of Sens. Robert Byrd, D-W.Va., and Health Education, Labor and Pensions Chairman Edward Kennedy has drained much of the urgency from efforts to solidify a deal.

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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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In Politico today, Steve Forbes opines that EFCA's "Binding arbitration is still bad for workers."  Forbes reviews and criticizes the potential "compromised" version of EFCA recently reported to be under consideration.  After noting again the problems with "quick elections," he then explains:

EFCA would allow federal bureaucrats to mandate contract terms on businesses and eliminate an employee’s right to vote on that contract. Those mandates on wages, benefits and workplace conditions would increase costs and burdens on employers resulting in massive layoffs and increased unemployment. These contracts would be binding for two years, which raises the question: In this economy, how many businesses would be able to last that long?

The whole piece is worth a read.  Forbes' conclusion:

The small-business community is committed to defeating this legislation and will not be fooled by attempts to soften the language to secure 60 votes only to reinstall poisonous provisions later in the process. And according to Service Employees International Union President Andy Stern, that’s exactly what union bosses intend to do.

 

It is clear that Big Labor will say and do anything to move this legislation forward and that it is not concerned with the integrity of the debate or whether businesses and our economy can withstand the results. Big Labor’s concern is not for workers but the bottom line of the organizations they have mismanaged.

 

Our bottom line is that it is nonnegotiable that workers must have a say on the terms of contracts that deal with their wages, benefits and workplace conditions. And it is nonnegotiable that workers have the right to vote via secret ballot and be afforded enough time to make an informed decision about unionization.

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As the attention has somewhat shifted from EFCA's card-check provision toward the bill's (equally or more) troubling mandatory interest arbitration provision, people have started to recognize the bill's many potential pitfalls for employers.  One critical issue gaining even more attention is the likelihood that interest arbitration proceedings might be used to resuscitate horribly crippled union pension funds on the backs of employers who have no responsibility for their deplorable current conditions. 

Many astute observers have long been warning about this crisis.  The Hudson Institute's Diana Furchtgott-Roth last summer published an eye-opening study, "Union vs. Private Pension Plans: How Secure Are Union Members' Retirements?"  Ms. Furchtgott-Roth's Executive Summary included these observations:

In 2005, the latest full year of data available, collectively bargained pension plans were more poorly funded than their non-union counterparts. Large plans, those with 100 or more participants, strongly showed this pattern. While 36.5 percent of nonunion plans were fully funded,1 only 19 percent of union plans met this criterion. The Pension Protection Act of 2006 considers funds underfunded, but not “at-risk,” if they are at least 80 percent funded. While nearly 90 percent of non-union plans met the funding threshold of 80 percent, only about 60 percent of union plans were not “at-risk.” Among collectively bargained pensions, around 11 percent were only 65 percent funded, low enough to put the larger national plans in the heavily-penalized “critical” category. Only two percent of non-union plans were in this condition.

Months ago, D.C. concrete contractor Brett McMahon noted in an Examiner Op-Ed, that "Card Check could kill my company and yours."  Around the same time, the American Spectator featured remarks by Mr. McMahon in a piece of its own, "A good time to start liquidating."

Now, yesterday's Wall Street Journal carried a piece entitled "Union Pensions in the Red," which editorializes on a particularly curious aspect of Ms. Furchtgott-Roth's findings:  that Union Officers' and staff pension plans are far out-performing the rank-and-file plans, and are not suffering the same critical underfunding status.  Per WSJ:

Poor management probably deserves a lot of the blame for the union decline, but the exact causes are a mystery. An even bigger mystery is that the unions do a far better job with funds created for their officers and employees than for mere workers. The SEIU Affiliates, Officers and Employees Pension Plan—which covers the staff and bosses at its locals—was funded as of 2007 at 102.2%. The plan for the folks at SEIU international headquarters was funded at 84.8%.

More coverage of these issues:

• "Link Between Failing Union Pensions and Card-Check" -- TheTruthAboutEFCA.com
• "The Shame of Unions: Massively Underfunded Pensions" -- Reason Online
• "Card-Check: Debt-Ridden Union Pensions Behind EFCA Push" -- ShopFloor.org
• "Card Check 'Lite' Is a Non-Starter" -- (Steven Law) on CBS News

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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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On July 22, 2009, Rep. Zoe Lofgren (D-CA) entered an extension of remarks into the Congressional Record in support of the Employee Free Choice Act.  Rep. Lofgren submitted a July 20, 2009 speech by former NLRB Chairman William B. Gould IV to the 58^th Annual Conference of the Association of Labor Relations Agencies.

Chairman Gould served on the NLRB during the Clinton administration, and is a Stanford University law professor emeritus. He also has long been a critic of EFCA as currently drafted, while remaining an outspoken voice in favor of significant labor law reform. His comments earlier this week continue to reflect that position:

This significant legislative proposal warrants dispassionate examination in an arena which has been too frequently divided and polarized. My sense is that the bill even with proper amendments—and I am quite confident that if it is enacted it will be amended—will have a considerable impact on the workplace. EFCA and labor law reform contain some of the assumptions that I have held for more than four decades, i.e., that the Act is plagued with lethargic enforcement, creaky and convoluted administrative procedures and ineffective remedies, that it is not working well and that, as a result, some employees who wish to join unions are unable to do so.

As talk of “compromise” or alternatives emanate from Washington, Chairman Gould’s is likely to become a more important voice -- should EFCA’s proponents have any serious interest in truly intelligent and “dispassionate examination” of the issues involved. Chairman Gould’s prior criticisms of EFCA have consistently focused on Sections 2 and 3 -- the card-check and interest arbitration provisions.  But regarding Section 4, which would increase penalties against employers during organizing efforts and negotiations, Chairman Gould said:

I think that the Employee Free Choice Act is right on the mark in establishing a treble damage award for back pay. For too long, an award of back pay minus interim earnings has been regarded by everyone involved on all sides as a license fee for employer misconduct because back pay is cheaper than a union contract.

 

EFCA also provides for fines up to $20,000 for each employer violation as well as new contempt sanctions. And again, I think that the new law has it right in expanding and making more effective the Board’s injunctive authority for employer unfair labor practices—in much the same manner that the statute has established them for union unfair labor practices since the Taft-Hartley amendments.

Regarding the remainder of the bill, however, Chairman Gould still believes “there is much more room for debate.” Reiterating that he finds card-check an inferior method of selection, he endorses the current thoughts being circulated regarding quicker elections:

The answer here is to both expedite elections—to require that they be held within a couple of weeks of the union’s petition, as is done in the provinces of Ontario and British Columbia—and to reverse Supreme Court precedent excluding non-employee union organizers from company premises so that they can carry their side of the message to employees more effectively in the run-up to the ballot itself.

Likewise, Chairman Gould suggests that mandatory interest arbitration as a default proposition for all new bargaining relationships is over-reaching:

However, EFCA-sponsored interest arbitration, in contrast to the grievance or rights variety, is relatively untested in the private sector in the United States. In Canada, which has first contract arbitration in most provinces, the process is rare and used sparingly (except in Manitoba where it is automatic after a specific time period). The conundrum is that the potential for a mechanism like this must be available to rescue bargaining which is at a stall, and yet its mere availability can undermine the collective bargaining process itself which is furthered by the Act.

 

The proper approach here, it seems to me, is to provide that the mediator—perhaps in consultation with the NLRB itself—should certify after extensive mediatory efforts that collective bargaining is either at an impasse or dysfunctional. As it presently stands, EFCA simply allows for arbitration to be invoked after three months of collective bargaining and subsequent mediation. Not only is this period of time too abbreviated, but by spelling out a specific period of time after which arbitration is automatic, it encourages the parties to maneuver in anticipation of arbitration in a way which can erode the voluntary collective bargaining process. Moreover, this approach fails to take into account the fact that both sides are frequently learning for the first time as they put together their very first collective bargaining agreement.

 

Arbitration must be used sparingly, although it should remain available in the final analysis so as to shore up a relationship which might otherwise disappear.

Chairman Gould concluded his presentation with a number of additional reform recommendations -- encouraging NLRB rule-making; unfreezing jurisdictional guidelines; allowing expansion of state labor law; eliminating batching of NLRB appointees; and reducing the size of the Board, while extending terms and barring re-appointment.   A thorough read of this piece by all serious management representatives, advocates or attorneys is a must.

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Two interesting viewpoints on labor law reform appeared today in today’s online edition of Politico. 

Will Marshall, President of the Progressive Policy Institute, wrote an article entitled “Setting the Stage for a ‘Grand Bargain’ on EFCA.” In it, Mr. Marshall, a centrist Democrat, suggested a “modified EFCA” that would address concerns raised by both labor and management. His proposals:

·       Use majority sign-up to trigger an expedited election. This seems to be what the Senate moderates have in mind. Holding secret votes within, say, a month after the cards are counted would limit the time available to either side to strong-arm workers.

·       In lieu of binding arbitration, authorize the NLRB to make workers whole when an employer fails to bargain in good faith. For example, the board could order employers to offer compensatory relief based on lost wages and benefits, in comparison with equivalent labor agreements.

·       Guarantee unions fair access to workers. One way would be to limit the number of meetings employers can declare mandatory during an organizing campaign.

Mr. Marshall asserts his belief that these changes are necessary because: 

[T]here is wide consensus that U.S. labor laws, framed in America’s industrial heyday, need to be modernized to fit the smaller, more fluid and more collaborative workplaces that now dominate the U.S. economic landscape.

Specifically, observers on all sides agree that the NLRB . . . takes far too long to reach decisions and that the penalties for ignoring its rulings are too weak.

The other view can be found in the comments following Mr. Marshall’s article. John Raudabaugh, who served as an NLRB Member from 1990-93 and is now a partner at Baker & McKenzie, wrote:

Labor's density has declined for many reasons including less commitment on organizing, failing to improve value-added services to "sell," and internal union disharmony. Refusing to acknowledge merit over lowest-common-denominator and fostering an entitlement culture is a non-starter. To reward failure with legislative imprimatur is absurd. However, if our elected representatives feel obligated to beltway centric labor: (1) any new penalty system must be applicable to labor too and for all violations of any kind at any time, (2) correct the wrongly decided Enmons loophole to the Hobbs Act, (3) re-introduce the TEAM Act to make lawful a collaborative, non-adversarial workplace, (4) provide hands-on free mediation assistance to first contract bargaining for unions and employers upon request, (5) merge the FMCS and the NLRB to provide seamless service, (6) reorganize representation case processing at the NLRB under a central intake, hearing, and decisional process at headquarters utilizing videoconferencing and related technologies removing regional office involvement, (7) make NLRB appointments one term only for seven years or consider creating a specialized Article III court to handle all workplace related matters including controversies arising under the NLRA, OSHA, and EEO related statutes. . .  hold hearings and conduct studies by meeting with senior agency staffers individually to solicit their ideas.

Mr. Raudabaugh expressed many of these ideas in Senate testimony on April 2, 2008. 

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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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Unfortunately, our Twitter feed is experiencing technical difficulties, which has slowed the pace at which we have been able to distribute news about developments.  While we wait for the Support team to get us back and tweeting again, here are a few items from around the web:

U.S. Chamber of Commerce General Counsel Steven J. Law opines that "Card Check 'Lite' Is A Non-Starter" at CBS News.com, in part, because:

... the real "poison pill" of forced government arbitration is the way it would spread union pension fund financial problems to healthy companies and workers. Many union-run pension plans are headed toward insolvency because of risky real estate deals and politicized investing. The Card Check bill would empower government arbitrators to force newly-unionized employers into these pensions - putting them on the hook for huge funding shortfalls. Under pension law, a business owner could be stuck paying benefits to people who never worked for them.

And because pension liabilities are included on company balance sheets, a previously healthy firm could have its credit rating ruined overnight by being dumped into a collapsing union pension.

The Alliance for Worker Freedom today sent this letter to President Obama, Secretary of Labor Hilda Solis and all members of Congress:

It is very rare to create a new contractual agreement where none previously existed through arbitration. Arbitration is a last resort for labor and business if common ground cannot be found. EFCA will fundamentally change the arbitration process, shifting the power from private business and workers to a partial governmental entity (i.e. a government appointed arbitrator).

Current arbitration legislation is founded on the principle of mutual consent. Section 8 of the National Labor Relations Act (NLRA) requires both employers and employee representatives to meet and bargain “in good faith with respect to wages, hours, and other terms and conditions of employment,” correctly encouraging negotiating members to compromise. Mandating governmental intervention changes the rules of the game, and thus, how negotiations will take place.

And TheTruthAboutEFCA.com expands upon our prior post regarding the evolving semantics of the debate:

Many in the employer community are concerned that proponents of the sadly misnamed Employee Free Choice Act have seized on a confusingly timed bit of news suggesting the “card check” provision of the bill is dead. That’s not the case — we hear constant stories about folks up on Capitol Hill trying to re-brand EFCA because it has become, in the words of Sen. Harry Reid, “toxic.”

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Theories abound on the motivation of the sources behind Steven Greenhouse's piece in last Friday's New York Times announcing that Senate Dems might be ready to give up on EFCA's "card check" provisions.   The timing was strange enough, but we also reported (via Twitter) early that morning that Senate staffers were denying the report.  Was the "leak" regarding card check a trial balloon?  Was it some other strategic effort by labor and some of their legislative allies?  

The other day, the TruthAboutEFCA.com ran a piece, paying literary allusion to "The Usual Suspects," analogizing "the greatest trick [EFCA proponents] ever pulled was convincing the world [card-check] didn't exist": 

But now it seems that rumors of card check’s death have been greatly exaggerated for a specific purpose (or several). Our friends at Shopfloor.org have been tracking the mysteriously timed pronouncement of card check’s death, even while Beltway insiders say it’s not so. So herein the latest analysis from Shopfloor:

The flogging of the “Senate Dems drop card check” story to the New York Times certainly brought renewed attention to the Employee Free Choice Act’s political prospects, which was probably the goal of the labor lobbyist(s) who were pushing the news. At least people are talking about the bill now instead of just assuming the whole thing is dead. Smart.

Plus they have a roundup of more analysis.

All this makes sense: have a bad product that people don’t like? Just tell them the big lie. Tell them it doesn’t exist. Nothing to see here, folks. Move along.

Card check is not dead and EFCA still contains binding arbitration — a method that would allow government bureaucrats to effectively run employment decisions for small business. No,EFCA is not dead, and neither is the fight against it.

The response to the Times story was immediate and forceful.  Business interests and EFCA opponents quickly condemned the possible development and began to focus more intense criticism on EFCA's mandatory interest arbitration provisions. 

Lest it be lost in the shuffle, however, there appears to have been a simultaneous increased effort on the part of labor to re-brand the mechanism proposed by Section 2 of EFCA as "majority sign-up."  While that has been terminology used by supporters for some time, and increasingly as labor realized how politically toxic the term "card-check" had likely become.  But in the wake of Friday's developments, there appears to be a stronger and more concerted effort to change the vocabulary of the discussion on this particular issue -- perhaps to soften it politically while we await the ultimate announcement of what comes next.  We shall see as the conversation continues. 

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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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Since the New York Times story yesterday, we've been following the developments regarding the supposed intention of Senate Democrats to drop the card check provisions from EFCA.  Our Twitter feed (see below right) has been compiling theories from all over following our Tweet early yesterday that Senate staffers were denying the leaked reports.  Other comment from around the web:

CBS News blog The Hotsheet reports that both proponents and opponents of the bill were quick to express doubt and/or displeasure with the Times report:

But representatives on both sides of the issue signaled in interviews with Hotsheet Friday that they are skeptical of the Times report. Josh Goldstein of American Rights at Work said in an interview that it is "premature to make any assumptions about what's going on in negotiations when the people who are in those negotiations are clearly stating that there is no deal."

"As far as I know, majority sign up is still on the table," he said. "And we're still fighting for it."

And Mark McKinnon of the Workforce Fairness Institute, a business group, told Hotsheet, "I don't think it's so much a compromise as it is a trial balloon."

At RedState, Brian Faughnan warns that the elimination of card check from the bill would address just one of EFCA's numerous serious flaws, leaving the bill's mandatory interest arbitration provision intact:

Calling this ‘binding arbitration’ is a misnomer. The phrase typically conjures images of an impartial expert deciding claims based on a pre-existing agreement. In this case you would instead have a bureaucratic ‘expert’ deciding on all provisions of a labor agreement. In a best-case scenario, workers and employers would be forced to adopt some least-common-denominator version of the contract governing other businesses in the same sector. In that case, say goodbye to innovation. In a worst-case scenario, you’ll see schills for labor or industry impose contracts specifically designed to further an agenda.

Similarly, an editorial in the Denver Post urges Sen. Michael Bennet (D-CO) to take a public stance on the bill, opining that the mandatory interest arbitration provision is the bill's larger flaw:

While we opposed the card check portion of the bill — the right to a secret ballot is a cornerstone of our democracy — it was never our biggest worry.

By far, the most economically destructive provision in EFCA is one that imposes binding arbitration if the parties fail to reach a contract agreement within 90 days.

This, in effect, means unions have zero incentive to bargain in good faith. They do have an incentive to make over-the-top demands, knowing they would be the starting point in arbitration hearings.

And worse yet, it puts government in the wage control business and has the potential to destroy companies — particularly smaller businesses.

At The Hill's Blog Briefing Room, Michael O'Brien posts that an un-named "anti-EFCA group" has released a poll indicating that mandatory interest arbitration is as unpopular a notion as card check:

60 percent of voters nationwide oppose the binding arbitration portion of EFCA — including 43 percent of the country that strongly opposes it, according to internal polling done by one of the groups working against EFCA.

Finally, TPM carries a piece relaying a quick opportunistic attack by Rep. Joe Sestak (D-PA) against Sen. Arlen Specter (D-PA), whom he hopes to unseat in the Democratic primaries:

"As an original co-sponsor of the Employee Free Choice Act, I strongly support the legislation as it was originally written," says Sestak. "Arlen Specter, however, announced that he not only opposed Employee Free Choice, but would prevent it from coming to a fair up-or-down vote."

"Arlen will have to explain to working families across Pennsylvania why he took the side of every Senate Republican to oppose this legislation as originally written." 

It seems that Rep. Sestak may have forgotten that long before he announced his intention to run for Sen. Specter's seat, he introduced an alternative to EFCA that eliminated card-check from the mix.

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Was a New York Times report yesterday about the demise of card check -- Section 2 of the Employee Free Choice Act -- entirely accurate, premature or something different altogether?

At the TAPPED blog, Tim Fernholz of progressive journal The American Prospect asks:

As an inside-baseball side note, I'm interested in why Steve Greenhouse, the Times labor reporter, went with this story now. There hasn't been an official announcement, and Harkin's press secretary wouldn't confirm it, and those same half-dozen labor-friendly senators have been talking about jettisoning card check for months. What was the decision point?

This has led some -- including David French of the International Franchise Association and Rob Green of the National Retailers Federation --  to speculate whether this "leak" to a veteran labor relations reporter at the Times truly indicates surrender on the issue of card check -- or is rather a "trial balloon" or similar political strategic ploy.   Sam Stein of The Huffington Post notes:

The process was supposed to go on in secret, but discussion were leaked to the Times on Thursday. An anonymous official with the AFL-CIO, was quoted in the piece prompting speculation that the union federation was responsible for the leak.  

Regardless of the current status of this provision in the bill, SEIU President Andy Stern has made clear in a statement that labor expects a litmus test vote on card check before 2010 elections: 

"As we have said from day one, majority sign-up is the best way for workers to have the right to choose a voice at their workplace. The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority sign-up provision in the final bill or by amendment in both houses of Congress."

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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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Crain's Chicago Business today featured a number of items regarding the Employee Free Choice Act, including an interview with Senior VP for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce Randel Johnson.  The whole interview is worth a read, but a few choice nuggets:

CRAIN'S: Why the big emphasis on labor law?

MR. JOHNSON: When the Democrats came back into power, we knew there was a change in philosophy from the previous administration and we expected they would revisit employer regulations. But even I've been shocked at the massive number of bills and what lies ahead, and it's only a few months into the presidency. It's a radical rewrite of American employee laws. 

  *  *  *

When do you expect movement on some of the pending legislation?

Everything is jammed up behind the Employee Free Choice Act, and it will remain pending until EFCA is resolved or taken off the table.

  *  *  *

Beyond legislation, what else is coming?

Business owners should look for new regulations on ergonomics and more aggressive enforcement of the OSHA general duty clause that requires employers to provide a safe workplace. Look for more aggressive enforcement of overtime laws. And we are closely watching the effort of enforcement agencies to narrow the definition of who is an independent contractor. It's not yet legislation, but believe me, it's coming. Overtime and payroll taxes, in particular, will be areas of huge exposure.

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Our Twitter page is now allowing us to pass most of these items along in near real-time.  But in case you aren't yet following us there, we'll continue to publish these media round-ups regularly.

LRIOnline has a piece expanding upon the meme also published advanced this week by Crain's Workforce Management -- that the NLRB appointed by President Obama might advance some variation of EFCA's elements by administrative rule-making even if the legislation were not to pass:

Wilma Liebman has made no bones about her support for reforming the nation’s labor laws generally, and she welcomes the debate on the Employee Free Choice Act specifically. Once she has a Board majority she will have the full power to implement massive labor law reform without the need for a single Senate vote.

Consider, for example, the vote period. The current 42-day vote window that unions complain about so wildly is completely Board created. The statute says nothing other than the Board will conduct an election. It could just as easily be 7-days or 14-days or 21-days after the petition is filed. The time limit is just a target, but the Board does a great job of meeting the 42-day target today and there is no reason to believe that they couldn’t meet a quicker target. So if unions can’t get a compromise on card-check, no problem. Just get the Board to shrink the vote window down to 7 or 14 days, which is effectively the same thing.  

Human Events has more commentary from Sen. John Thune (R-SD) who participated in a recent conference call to address the status of the Act: 

...Sen. Thune stressed the importance of not accepting compromise. Thune stated “the cloture vote is the critical vote” because – if the measure gets to the floor, Democrats may yet be able to muster the votes necessary to overcome a Republican filibuster. Even if the Employee Free Choice Act was revised to pass the cloture vote it “is going to move further to the left as you get into conference with the house…with pretty much most of the elements of the original bill when it comes out of conference.”

Thune is also quoted, along with labor relations analyst Bryan O'Keefe in today's Washington Times, regarding the impact on EFCA of Richard Trumka's announcement that he will seek the presidency of the AFL-CIO:

Analysts say Mr. Trumka and the AFL-CIO think now is the perfect time to win favorable changes to labor laws.

"EFCA would be a gold mine for the union right now," said Bryan O'Keefe, an independent labor specialist. "The intimidation would be rampant with this thing. And it's an easy way to boost union membership significantly."

Sen. John Thune, South Dakota Republican, predicted Thursday that Democrats would have a hard time passing the "deceptively titled and dangerous" EFCA, given divisions within the Democratic caucus and the absence of ailing senior Democratic Sens. Robert C. Byrd of West Virginia and Edward M. Kennedy of Massachusetts.

"This thing will hit businesses both large and small," Mr. Thune said. "Democrats and labor are working on a compromise, but there cant be a compromise on things like card check and mandatory arbitration."

Finally, the Alliance for Worker Freedom has launched "What Is Card Check?" -- an interactive online look at related issues. 

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If you've been following us (or Daniel Schwartz) on Twitter, you are likely aware that President Obama has named the nominee for the third and final vacant seat on the NLRB -- and has finally actually nominated the individuals he identified in April for the other two.  Brian Hayes has been tapped to join SEIU Associate General Counsel Craig Becker and Buffalo labor attorney Mark Gaston Pearce as Members of the National Labor Relations Board.  The press release issued by the White House describes Mr. Hayes as follows:

Brian Hayes, Nominee for Member of the National Labor Relations Board
Brian Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP).  Previously, Mr. Hayes was in private legal practice for over twenty-five years. His practice was devoted exclusively to representing management clients in all aspects of labor and employment law. He has represented employers in scores of cases before the National Labor Relations Board, the Equal Employment Opportunity Commission, and various state fair employment practice agencies. He has served as chief trial counsel in the full range of employment claims in both state and Federal courts. Mr. Hayes has extensive experience in negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. He has argued a number of significant labor cases before the Federal Courts of Appeal; and regularly counseled clients regarding compliance with the full range of state and Federal labor laws including OSHA, FMLA, Title VII and the Fair Labor Standards Act. Before entering private practice, Mr. Hayes clerked for the Chief Judge of the National Labor Relations Board and thereafter served as Counsel to the Chairman of the NLRB. In addition to his private practice Mr. Hayes was a member of the adjunct faculty at Western New England Law School where he taught classes in Labor Law, Collective-Bargaining, Arbitration and Employment Litigation. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center. 

What remains to be seen is whether or not these three gentlemen will be confirmed by the Senate -- perhaps not so coincidentally amid all the talk about the future of EFCA, and the possibility of a sympathetic Board expanding the use of card-check without legislation -- or whether the President will have to make recess appointments. 

This Labor Board is certain to reverse Board law set forth in decisions passed during previous administrations, and will do so in a manner expanding the rights of unions and workers.  We have previously reviewed many of the possibilities in posts here and here.

More on the issue:

• "Card Check and the National Labor Relations Board" -- ShopFloor.org
• "Hayes to be Republican Nominee to NLRB" -- Workplace Prof Blog 
• "Third Nomination to NLRB" -- Ross Runkel's LawMemo

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In addition to our writing here, EFCA Report is now regularly posting on Twitter.  Follow us at www.twitter.com/efcareport.

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The current issue of Newsweek magazine contains a strongly titled opinion piece, "Unions: We're Better Off Without Them."  The author, Kevin Kelly, C.E.O. of Emerald Packaging in Union City, California. recounts his experiences with two "exhausting, deeply distracting" union representation campaigns.  He lays out in sensible, composed terms why many small business owners might prefer to operate without a union representing their employees, and he expresses his concerns about the evolving regulatory environment under the Obama administration in this regard.

Midway through the article, however, Mr. Kelly subtly shifts gears, and articulates sympathy for the most common arguments in support of EFCA:

Others are taking a more activist approach. One small business person wrote to his senator urging her to vote against the legislation, or at least amend it so that some sort of election period is preserved. "My argument is that the company should have at least some period to make its case," he says. Like many businesspeople, he worries that a union organizer might bully an employee into signing a card. I can't help but feel that prevention is the better route though. When, not if, a bill passes, I'd rather be a less susceptible target thanks to good employee relations.

Years ago that union drive certainly woke me up. Almost overnight we quickly overhauled our employee relations. We put a pay scale in place so that raises occurred in a timely manner and not just at the whim of a manager. We hired a human resource manager to handle day-to-day employee issues, tackling problems like reimbursements for health care costs. I began to meet regularly with employees, including periodic meals with each of our three shifts. These meetings often last two hours—or more—as employee's list ways they think the company could be improved, often offering ideas to boost productivity or quality.

I must confess, unlike many businesspeople, I do have a soft spot for the spirit of EFCA. While I can't agree with doing away with elections, I do accept that six weeks is far too long. If a company can't make its case in three weeks, then it likely deserves the union it gets. Six weeks gives employers too much time to wear employees down. Forcing workers to sit through meeting after meeting, bashing the union, hinting that the company might move or close if the union wins, probably is the corporate equivalent of the fear many businesspeople carry that union organizers might manhandle our employees into signing cards.

There is nothing inconsistent in Mr. Kelly's assertions here and his objection to EFCA, or his desire to operate union-free.  Indeed, many of his insights should be extremely helpful to like-minded small business owners. 

One might also read the last few paragraphs, however, and ask what special insight Mr. Kelly might have into the current efforts underway to make EFCA more palatable to 60 Senators.  Many of the positions referenced here -- preservation of the secret ballot, quicker elections, restricting employer meetings -- are elements frequently discussed in connection with possible substitute labor law reforms. 

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Al Franken appears set to be sworn in as U.S. Senator on Tuesday, July 7.  EFCA steward, Sen. Tom Harkin (D-IA) said last month that he was waiting on Franken's seating to introduce the "compromise" version of the bill that he has been working on with Democrats and organized labor.  That has led many to speculate that a revised EFCA may be brought to the Senate floor in the next week or so.  Politico notes today:

Sen. Tom Harkin (D-Iowa), sponsor of the labor-backed Employee Free Choice Act, has been telling union leaders that Franken’s presence could accelerate the push to create a compromise bill more quickly than Reid’s 2010 timeline, according to people familiar with the situation.

Still, as we noted last week, the Politico piece also identifies numerous hurdles which remain for any Democratic legislative priority, including EFCA:

Democrats are short two ailing members — Sens. Robert Byrd (D-W.Va.) and Ted Kennedy (D-Mass.) — two legislative titans who simply can’t be counted on to show up for any given vote at this point in their lives.

Then there are a handful of members on Reid’s right flank — Nebraska’s Ben Nelson, Louisiana’s Mary Landrieu, Indiana’s Evan Bayh and wild-card independent Joe Lieberman of Connecticut — who tend to be loyal but could buck him on health care reform or climate change legislation.

Add endangered 2010 candidates Blanche Lincoln (D-Ark.) and Michael Bennet (D-Colo.), and the number of rock-solid cloture votes in Reid’s pocket drops to between 52 and 54.

The National Electrical Manufacturers Association (NEMA) has identified a number of Senators who have either expressed opposition to, or concern with, EFCA in its current form, and asked its membership to reach out to them:

While it is important that every Member of Congress hear from manufacturers (and distributors) on this important issue, it is critical to contact the following Senators during the July 4th recess period to urge them to oppose all votes (including cloture) on EFCA in any form:

Senator Evan Bayh (D-IN), phone 202-224-5623, fax 202-228-1377
Senator Michael Bennet (D-CO) phone 202-224-5852, fax 202-228-5036
Senator Kay Hagan (D-NC) phone 202-224-6342, fax 202-228-2563
Senator Mary Landrieu(D-LA) phone 202-224-5824, fax 202-224-9735
Senator Blanche Lincoln (D-AR) phone 202-224-4843, fax 202-228-1371
Senator Ben Nelson (D-NE) phone 202-224-6551, fax 202-228-0012
Senator Mark Pryor (D-AR) phone 202-224-2353, fax 202-228-0908
Senator Arlen Specter (D-PA) phone 202-224-4254, fax 202-228-1229
Senator Mark Warner (D-VA) phone 202-224-2023, fax 202-224-6295
Senator Jim Webb (D-VA) phone 202-224-4024, fax 202-228-6363

Regrettably, only Specter and Pryor have been reported to be involved in Sen. Harkin's "compromise" discussions.  Since those conversations also appear to involve the AFL-CIO, but not a single member of the business community or Republican caucus, one might seriously contest the use of the term "compromise" to describe what is truly going on.  Hopefully, the American public will at least have the opportunity to hear and consider a sober, reflective debate about the respective positive and negative elements of any proposed labor reform bill.

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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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#efca

The Denver Post reports that Sen. Michael Bennet (D-CO), who was appointed to fill the unexpired term of Interior Secretary Ken Salazar, is still not commenting about his position on the Employee Free Choice Act. 

Conservative blogger Mount Virtus further chronicles the Senator’s artful dodging of the question.

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TPM and NPR (and EFCA Report) broke the news over a month ago.  But today, with the Al Franken development front and center, Rep. Joe Sestak (D-PA) appears to have made it official.  The Congressman will run against Senator Arlen Specter (D-PA) in the Pennsylvania Democratic Primary for Senate in 2010.  Many have been speculating that Sestak's support among those on Specter's left flank might put pressure on Specter to either (a) express more support for EFCA in its current form, or (b) bring forth an alternative palatable to organized labor in short order.

Many forget, however, that Rep. Sestak already has introduced an alternative to EFCA -- the National Labor Relations Modernization Act (H.R. 1355).  Introduced days before Rep. George Miller (D-CA) and Sen. Tom Harkin (D-IA) introduced EFCA in the 111th Congress, Sestak's bill would

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

With talk of an EFCA "alternative" possibly being pushed to the Senate floor as early as next week, the timing of Sestak's "announcement" would seem directed toward impacting this issue more than most.

More coverage:

• "Are Specter's Senate Days Numbered?" -- Christian Science Monitor
• "Rep. Sestak Says He Will Challenge Specter In Pa. Senate Primary" -- American Spectator
• "Sestak Pulls The Trigger" -- Politico

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NAM's ShopFloor.org has favorably cited our assessment of the impact of the Franken decision on EFCA's prospects:

Expect a renewed wave of enthusiasm by the bill’s supporters in the days to come.  Still, once Franken is seated as the second Senator from Minnesota, EFCA in its current form faces an uphill battle.   Many of the 60 votes possibly controlled by the Democrats have openly questioned the bill’s current provisions – Sens. Lincoln, Feinstein, and Bennet to name but a few.  Senator Arlen Specter (D-PA), whose recent famous party switch put the Democrats this close to the prospect of cloture on any given measure, has consistently criticized EFCA as currently drafted. 

(NAM also had an important tidbit yesterday on President Obama's intention to nominate George Coehn to head up FMCS.)

LaborUnionReport remains concerned that the current version may yet be sent to the floor soon:

While there is still the potential for compromise legislation to be crafted, Tom Harkin has threatened, barring any compromise, to send the legislation to the Senate floor for an "up or down vote" after July 4th (which is less than a week away).

Kevin Bogardus reports in The Hill that Democrats and Labor seem cautiously optimistic yet politically realistic about the bill: 

“Franken’s victory certainly helps our chances of passing EFCA, but there is still plenty of work to be done,” said Thea Lee, policy director for the AFL-CIO.

“Working families need him in the United States Senate to help restore the economy, rebuild the middle class and renew the American Dream for all workers,” said Anna Burger, chairwoman of Change to Win and secretary-treasurer of the Service Employees International Union.

The bill should pass overwhelmingly in the House. But unlike in the last Congress, the Senate is working on the bill first to see if a compromise can be worked out to gain cloture.

Sen. Tom Harkin has been the lead negotiator on a compromise. The Iowa Democrat says Franken needs to be seated to have enough votes for Senate passage.

“There are multiple factors at play. Seating Sen. Franken is definitely one of them, but this bill is a heavy lift. Sen. Harkin is committed to moving this bill forward in a timely fashion,” said Bergen Kenny, Harkin’s press secretary.

Still, there is no question where Mr. Franken stands on the legislation:

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The Minneapolis Star Tribune and CBS report that the Minnesota Supreme Court has affirmed the trial court decision declaring Al Franken (D) the winner of last year's Senate election:

"We affirm the decision of the trial court that Al Franken received the highest number of votes legally cast" in the election, the decision states. The justices also explicitly ruled that Franken is "entitled" under Minnesota law to receive the certificate of election as senator.

The judges stated that Coleman has "not shown that the trial court's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion." They ruled unanimously for Franken, 5-0.

Subsequent reports note that Coleman has conceded.  Once Franken is seated, the Democrats will hold 58 seats in the Senate, and two independents, Sens. Joe Lieberman (I-CT) and Bernie Sanders (I-VT), often caucus with them on labor issues.  It has long been speculated that this development would lead to a resurrection of efforts on behalf of the Employee Free Choice Act. 

Expect a renewed wave of enthusiasm by the bill's supporters in the days to come.  Still, once Franken is seated as the second Senator from Minnesota, EFCA in its current form faces an uphill battle.   Many of the 60 votes possibly controlled by the Democrats have openly questioned the bill's current provisions -- Sens. Lincoln, Feinstein, and Bennet to name but a few.  Senator Arlen Specter (D-PA), whose recent famous party switch put the Democrats this close to the prospect of cloture on any given measure, has consistently criticized EFCA as currently drafted.  On April 28 of this year, he reiterated that stance:

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.

What this likely means is that the various parties pursuing alternative labor law reform measures will now step up those efforts.  Among these underway:

• Senator Specter has previously laid out a number of possible elements he would explore, many of which we reviewed in our early 2009 white paper.
• Sen. Tom Harkin (D-IA) is said to have been pursuing "compromise" legislation providing for secret ballot elections within 21 days, and a greater emphasis on mediation in collective-bargaining.
• Sens. Feinstein and Specter have been said to have been discussing some form of mail-balloting as a selection method.
• The Committee For a Level Playing Field has proposed a comprehensive set of "principles for reform" incorporating stricter penalties, dates certain for elections, and union access to employees during campaigns, while preserving secret ballot elections and collective bargaining.

More coverage of today's news:

• "Meet the Dems' 60th Vote...Maybe" -- Atlanta Journal Constitution
• "After Eight Month Fight, Franken to be Seated" -- The Hill
• "Norm Coleman concedes Senate race to Al Franken" -- Politico
• "AFL-CIO: Franken Crucial for EFCA Passage" -- TPMDC

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Yesterday on Fox News' "Special Report with Bret Baier," the host discussed President Obama's healthcare reform agenda with panelists Fred Barnes, Kirsten Powers and Charles Krauthammer.  During the discussion, Krauthammer suggested that if the President's plan included tax exemptions for benefits provided by union plans, EFCA could become an unnecessary after-thought:

BAIER: President Obama in his even today, Kirsten, said "Don't listen to all the people that say the sky is falling." And he said "Yes, we can. We are going to get this done, yes, we can," pulling the campaign slogan.

Is that a sign that this is in trouble?

POWERS: I do not get the sense that they think it is in trouble. And their plan is to try to actually move this as quickly as possible, not let it languish like it did in the Clinton plan, where people had time to really pick it apart.

And I think Fred hit on an important thing is that once you start getting things on paper, then people can start picking them apart.

Right now what we have are a bunch of trial balloons. We don't know what's going to come of any of these, including taxing benefits, which of course was John McCain's idea during the campaign.

And, you know, I think a lot of people think what we will end up with is something along the lines of taxing the benefits of people at a certain income level.

But in terms of other things that have been tossed around, like possible exemption for unions, that is extremely unlikely. It is probably more likely they would do something at an income level which would have the effect of exempting unions without actually exempting them.

BAIER: Charles, the union thing, if they get exempted, that is a huge deal.

KRAUTHAMMER: That is a huge — the biggest payoff perhaps in history to organized labor. It would establish a two-tier system in America, where if you are in a union, you get a pass on taxation of your benefits that your employers pay. If you're out of a union, you get taxed that. That is a huge difference.

Secondly, it kicks in on the first of January 2013, which means that for the next of four years, people will be scrambling to get into unions in order that you will have your employer benefits non-taxed.

POWERS: Charles will join a union.

KRAUTHAMMER: I will join a union if I have to.

BAIER: The Employee Free Choice Act lives, perhaps?

KRAUTHAMMER: You won't even need card check to force people in with a thug who comes to your home at night and says you want to sign here to become a union member?

Instead, you offer a goody of a two-tiered system, and I think it will be a tremendous asset to anybody organizing unions. So it's a payoff.

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At ShopFloor.org, NAM criticizes the AFL-CIO's Richard Trumka for accusing the Association of acting through "front groups":

Labor calling business coalitions “front groups” is meant to imply shadowy, dishonest organizations created to hide one’s alliances. It cannot conceivably be applied to the Coalition for Democratic Workplace, the group the National Association of Manufacturers is active in. In our Shopfloor.org posts on the CDW’s activities, we almost always include a line associating the NAM with its efforts, such as, “The National Association of Manufacturers is a member of the Coalition for a Democratic Workplace and glad of it.” And here’s the CDW’s membership list.

If Trumka wants his attacks against “front groups” to have some modicum of intellectual honesty, he might want to level them via some other group than the International Centre for Trade Union Rights.

The Alliance for Worker Freedom has issued a new press release asserting that bailing out the failing union multi-employer pension system is the true aim of EFCA:

“The unions’ ulterior motive behind the Employee Free Choice Act (EFCA) is to use the forced binding interest arbitration clause to mandate companies fund the underperforming and underfunded union pension plans,” says AWF Executive Director Brian Johnson. “For companies, the choice is clear: shut down immediately or go out of business due to loss of capital to pay for operating costs by being forced to fund a failing system – it’s that easy.”

The Hill reports that neither Democrat Senator from Montana -- Sen. Max Baucus or Sen. Jon Tester -- will proclaim support for EFCA as currently drafted:

"It would be very hard to support the bill in its current form, but that is why I'm working with my colleagues in the Senate to bring some common-sense modifications to the bill to make sure it balances workers' interests with small-business interests," Baucus told The Missoulian, which did a two-part series on EFCA's potential impact on Montana.

Tester's spokesman meanwhile said EFCA "isn't ready for a Senate vote yet," and added that Tester would weigh the bill's pros and cons before deciding on how to vote.

Finally, at Think Progress, Matthew Yglesias makes the following observations about the filibuster:

I don’t think you need to appeal to the idea that people prefer to pander to the caucus’ worst instincts so much as simply the fact that legislators prefer to do nothing at all. The supermajority—and, more broadly, the extreme difficulty of moving legislation—makes it easier for elected officials to make contradictory commitments to various people. Consider that as long as Democrats clearly didn’t have the votes to pass the Employee Free Choice Act, they could promise labor law reform to unions while also reassuring business that no such law was going pass. After the election suddenly there were sixty members who’d promised to vote for EFCA, which created an awkward situation for those members who, in fact, preferred to do what business wanted and killed it. They had to flip-flop in a not-very-pretty way and anger a lot of people. If it took 67 votes to move a bill, they would have been in much better shape, loyal friends to Wal-Mart and the AFL-CIO alike.

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Dispute arbitration is used to resolve factual disputes (such as whether or not an employee was properly discharged or disciplined) -- after a contract has been entered into by the parties. There is long-standing precedent for this type of arbitration and surveys demonstrate its utility and support by the public. This is entirely different from what EFCA calls "arbitration." What EFCA entails in its interest arbitration language is a broad grant of authority to an outside person or entity to actually write and determine every provision of the underlying contract governing an entire workplace -- and force the parties into that contract. The comparisons are entirely spurious.

 

The unions remain troubled by the facts and are trying to deliberately confuse the issues. However, no amount of obfuscation will hide the true impact of the Employee Free Choice Act. Government-mandated binding interest arbitration of any type in the private sector is unworkable and unacceptable. It is also completely unrelated to the business community's support for dispute arbitration.

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Today's Chamberpost blog carries commentary on a series of somewhat embarassing admissions by the Director of Collective Bargaining for the AFL-CIO that undermine the coalition's main talking points in favor of the Employee Free Choice Act:

... According to Daily Labor Report, the labor conglomerate’s director of collective bargaining, Gordon Pavy, told a policy forum that the bill’s passage would allow his organization to "refocus on organizing."

Hold it a second.  Refocus?  Hasn’t this already been a central focus of the labor movement?  Pavy’s comment reveals what we’ve known all along: organized labor has let its organizing efforts lapse in favor of using the political process to bolster its ranks by rigging the rules. 

Perhaps the more troubling admission:

On the issue of concluding first contracts, Pavy also revealed that "the AFL-CIO does not currently have a program to train members in how to negotiate collective bargaining agreements."  Huh?  A favorite talking point of EFCA supporters is that they can’t get contracts because employers drag out negotiations. Perhaps unions would seal the deal on more contracts if they made training negotiators a priority. 

Instead, unions want binding first contract arbitration so they always get a contract no matter what they demand at the bargaining table.  But, Pavy detailed the squeeze this would create on negotiating parties: 

"Bargaining must commence 10 days after [union authorization cards are signed]," Pavy said. "It takes a lot of work to prepare for bargaining.  It takes even more work when you’re dealing with the prospect of possibly going to arbitration."

We’ve said all along that negotiating for a first contract can be a difficult process that takes time.  Nice that the AFL-CIO agrees. But as they admit, setting up a race against the clock makes that process even more difficult, guaranteeing that most negotiations will wind up in arbitration.

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Last week, CNBC financial host Jim Cramer made news decrying Labor's pursuit of "card check" on the "Morning Joe" program.  This week, he's involved in another conversation criticizing the effort, but the focus-slash-backlash is directed to network-mate Erin Burnett.

As reported earlier by Greg Sargent at the WhoRunsGov blog:

Now Burnett suddenly seems to be in the soup again — this time for comparing the Iranian elections to what would happen under the Employee Free Choice Act — and she’s getting bombarded by a plague of angry emails, courtesy of the SEIU.

Burnett asked whether the situation in Iran “makes a strong point for this whole union conversation that we’re having in this country?” The point being, of course, that EFCA’s supposed elimination of the “secret ballot” for joining unions would be analogous to Iran.

Around an hour ago, SEIU blasted out a demand that members bombard Burnett with email pilloring her “irresponsible journalism” and “reckless reporting.” SEIU claims that more than 4,000 emails have rained down upon Burnett in that time.

Who knows how much Burnett cares about a bunch of emails from grubby union members. But SEIU obviously is grabbing at the chance to juice its membership by tying the sometimes numbing EFCA debate to the hottest story of the moment, hopefully baiting Burnett into responding again.

The video:

More:

• "Cramer, Burnett: Iran Election Results Expected; Lesson for Card Check Proponents" -- Business & Media Institute
• "CNBC Fail: Anchors Compare Iran Elections to EFCA" -- SEIU blog

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At Town Hall, Carl Horowitz examines the ongoing corporate campaign by Labor and its allies against Starbucks. Horowitz generally notes the irony in the Far Left-Labor alliance continually hammering the coffee giant, which has always "sought to be a hybrid of profit-seeking and social responsibility."  Among other elements of this campaign, Horowitz notes recent developments following Starbucks' announcement just months ago, that it was forming the "Committee for a Level Playing Field", along with CostCo and Whole Foods to explore alternatives to EFCA:

EFCA, as many are aware, has stalled. In 2007, the House passed the measure, but Senate Republicans successfully blocked it. The bill, not unpredictably, has been re-introduced in the new Congress; President Obama has vowed to sign it. Yet even with wide Democratic majorities in the House and Senate this time, the measure remains highly vulnerable to filibuster. A number of Senate Democrats such as Blanche Lincoln (Ark.), Claire McCaskill (Mo.), and party convert Arlen Specter (Pa.) believe the Employee Free Choice Act is ill-suited to deal with the current recession, if not necessarily wrong in principle. Union leaders such as Service Employees President Andrew Stern have expressed pessimism over the prospects for passage.

Here’s where the Seattle-based Starbucks fits into the picture. This March, Starbucks’ Howard Schultz, Whole Foods’ John Mackey and Costco’s James Sinegal announced the formation of an ad hoc group, the Committee for a Level Playing Field for Union Elections. The purpose is to create a Third Way that would protect union organizing rights while retaining the secret ballot. The project would guarantee a fixed time period in which to hold a secret-ballot election and increase penalties upon employers and unions who violate the law.

Many activists on the Left are enraged at this seeming sellout, which in fact is more tilted toward union interests than it looks. It’s another phase in a continuing battle against Starbucks.

His conclusion?   Starbucks should "smell the coffee and fight back."

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The Wall Street Journal reports that earlier today, during comments about the Obama healthcare agenda, Secretary of Labor Hilda Solis reiterated her support for EFCA:

With regards to the Employee Free Choice Act, Solis reaffirmed her support for employees being allowed to form unions and said she's hoping to see some sort of compromise on the controversial legislation that has pinned businesses against union advocates.

Solis declined to say what specific compromises could be made.

Online Marxist journal Political Affairs Magazine carries a recent speech by Rep. Keith Ellison (D-MN) wherein the Congressman challenged progressives to aggressively promote their agenda, including:

We can't aim low. The Employee Free Choice Act, bare minimum. Bare minimum. It's not much to ask for, but until we make it into the law, it's just something we're hoping for. Are we going to bring the pressure we gotta have to get the 60 votes we need to end the debate?

You better believe that the Chamber is loaded for bear to stop this effort, for workers to get the rights that they need. Are you loaded for bear? This is the question that I put before you. I'm going to tell you that I trace every single financial and economic problem back to the weakness and fragility of the labor movement since 1957.

If workers were stronger – if workers were stronger, we'd have universal health care already. If workers were stronger, we'd have the rights of gays and lesbians protected. If workers were stronger, we wouldn't have had to pass the Lilly Ledbetter Act a few weeks ago; we'd have been had legislation to make sure that women get paid for equal work; it is only just, and it's only right.

We would have had this stuff done already, but it is because, it is because, it is because our movement lacks muscle and bone density that we're not able to drive the interest that we need, and that means starting with strengthening labor. The Employee Free Choice Act must be made a reality, and all of us have to take personal responsibility in doing it.

Politico's Shenanigans column follows an SEIU effort to persuade the "friends and neighbors" of Sen. David Vitter (R-LA) that the Senator should support EFCA.  Anne Scroeder spoke to Vitter press secretary Joel DiGrado about the SEIU mailers he has been receiving at his home address:

DiGrado thought it was strange he had received the mailer at home. At work, he discovered that another Vitter staffer also received the mailer at his home in D.C. Then they talked to a former staffer, and he had gotten one at his home in North Carolina. Their informal polling showed that none of their neighbors had received the mailer, which is very Louisiana-specific. Clearly, the SEIU is targeting Vitter staff. And, presumably, it’s rather pricey to do so — just this week The Wall Street Journal reported the SEIU is in debt.

“It just plays up the negative stereotype you hear about unions using intimidation to meet their ends,” DiGrado tells Shenanigans. “What’s next? Are they going to put a large inflatable rat in front of my house? Am I going to have to think twice every time I see a Local Steamfitters van by my car?”

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At Pajamas Media, Jennifer Rubin questions whether Sen. Tom Harkin (D-IA) truly intends to bring EFCA to the Senate floor in July:

There are grounds for skepticism. After all, with health care and Supreme Court confirmation fights brewing, it seems the congressional calendar is already jammed. Yes, it is true that the newest Democratic Senator Arlen Specter has let Big Labor officials know that they won’t be “disappointed” by his vote when it comes up. But what’s in the compromise? And more importantly who’s going to tell Sens. Blanche Lincoln, Ben Nelson, Mary Landrieu and other nervous Red State Democrats that they have to walk the plank on this one?

As one Capitol Hill Republican aide told Pajamas Media: “Sounds like it might be a bit of bluster. … Still, even still, even if all of this is as Harkin claims, they still only have 59 [votes] without Franken.  But if he comes in [to the Senate], they’re going to have to definitely flip Nelson or some of the other nervous Dems.”

Marathon Pundit's John Ruberry reacts to a report in today's Denver Post regarding "panicked" reactions of organized labor to Sen. Michael Bennet's more recent commentary on his "cool" stance on the bill:

I don't blame them for panicking. Officially the Coloradan is neutral, but they also must remember that workers aren't marching down the streets of Denver, Greeley, or heck, any American town demanding to join unions. And if they want to, there's a set procedure in place--secret ballot elections.

And in the Detroit News, columnist Manny Lopez relays the details of a recent phone conversation he had with Michigan AFL-CIO head Mark Gaffney:

Right to work, Gaffney told me, was purely a "political consideration" that union Democrats would never support anyway. Perhaps. It's as much a political issue as is the Employee Free Choice Act, a push by the labor movement to allow union formation with card signatures alone.

Gaffney, and plenty of United Auto Workers members I talk to, think EFCA is the perfect answer to all the Southern senators who opposed helping bankrupt General Motors Corp. and Chrysler LLC.

It is not, however, the answer. Restricting competition or lowering the benchmarks so low that employers -- the entrepreneurs who provide jobs and build communities -- lose control of their own operations, will only guarantee further jobs lost.

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NewsMax.com reports that EFCA steward Sen. Tom Harkin (D-IA) will not seek any formal Senate action on the legislation "until Al Franken is sworn in as senator."  Citing a Politico piece, the report continued:

Harkin felt it again did not have enough votes to pass earlier this spring, due to it being opposed on a nearly party-line. However, rogue Pennsylvania Sen. Arlen Specter, who originally opposed any bill that includes the open-ballot rule, switched from the Republican Party to the Democratic Party in April and has since been privately discussing the bill with Harkin.

Harkin said he expects to put the card check bill up for vote next month and credits Specter, Sen. Mark Pryor, D-Ark., and Sen. Charles Schumer, D-N.Y., with crafting a compromise.

Politico reported that on Tuesday, Harkin included AFL-CIO legislative director Bill Samuel in the talks, indicating progress is being made.

“We’re in meetings right now,” Harkin said. "I’m still hopeful that we can get something done.”

Reportedly excluded from the closed-door talks were Sens. Ben Nelson, D-Neb., and Dianne Feinstein, D-Calif., RedState.com reported sources as saying. Harkin also will need their support to avoid a filibuster.

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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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The latest on EFCA swing-vote Sen. Arlen Specter via the Allentown Morning Call's Pennsylvania Avenue blog:

Sen. Arlen Specter, addressing a crowd of union activists outside of the Democratic Committee meeting in Pittsburgh on Saturday, urged them to look at the breadth of his job-producing past and votes alongside labor when considering who they'll back for Senate in 2010.

But with the crowd of a couple hundred solely focused on the Employee Free Choice Act, Specter pleaded with some more hostile activists that they'll be happy with his vote on the union organizing bill.

"I understand," Specter said after one member of the crowd shouted "You want my vote, I want your vote."

"I believe you'll be satisfied with my vote on this issue," Specter said.

At The Weekly Standard, John McCormack posts:

When Specter announced his opposition to EFCA in March, he came out against both the card-check and binding arbitration provisions.   . . .   I'd be surprised if a watered-down EFCA bill didn't include some sort of binding arbitration provision, so be prepared for another unsurprisingly shameless Specter flip-flop.

Similarly, at National Review Online's The Corner, former NLRB Member Peter Kirsanow suggests:

. . . It's highly unlikely Labor would be "satisfied" with any version of EFCA that doesn't exponentially improve the odds of unionization. It's also unlikely that Labor would be "satisfied" with a bill that doesn't have some form of mandatory arbitration.  

When Franken is seated, Specter will be the magical 60th vote for cloture on EFCA. Specter knows that if he derails a version of the bill satisfactory to Labor, he may well derail his prospects in the Democratic primary. Therefore, Specter may be signaling support for a bill that contains quickie elections and equal access, as well as a modified form of mandatory arbitration — perhaps one triggered by bargaining delays.

More:

• Senator Specter's entire speech at PennLive.com
• "Arlen Specter's Charm Offensive" -- Politico
• "Specter to Labor:  You'll Like My EFCA Vote....Maybe" -- The Hill's Briefing Room
• "Early Returns: Specter Reax" -- Pittsburgh Post-Gazette

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Investors Business Daily reports the "Card Check Threat Alive and Well":

Card-check supporters have begun a new lobbying effort that targets a few wavering senators including Democrats Dianne Feinstein, Arlen Specter and Mark Pryor. The idea is to put the squeeze on Congress instead of taking the case to voters.

It may be one reason why card check has morphed into new incarnations, the latest a "compromise" bill from Feinstein. She has proposed a mail-in card-check format, which still amounts to a denial of secret ballot. Curiously, Feinstein backed away from her own compromise Thursday, raising questions as to whether she was being manipulated and wanted out.

The other prong of the card-check lobby has set up a supposed "grassroots" group as a fig leaf for the same old Big Labor interests.

A new group calling itself "Business Leaders for a Fair Economy" has gotten press for its novelty value as a 1,000-member business group that actually favors card check. Its Web site says it's paid for newspaper ads in The Hill, Politico and Wall Street Journal, all closely read by the political set, urging Congress to pass card check.

Others are also skeptically commenting on the AFL-CIO's latest project launch, the Business Leaders for a Fair Economy.  The Hill, recipient of some of the organization's ad dollars, notes "Industry Questions Pro-Card Check Business Coalition":

But advocates for the National Federation of Independent Business (NFIB) and the Workforce Fairness Institute, two opponents of the bill, say the businesses that make up the coalition all have union shops and the new coalition’s goal is to increase labor’s ranks so its unionized members would not have to compete as much with the smaller labor costs of non-unionized firms.
 
“Invariably, these business owners are already unionized. So the bill would provide a competitive advantage for them if it got passed and level the playing field by having their competitors forcibly unionized as well,” said Brad Close, vice president for public policy for the NFIB.

And Labor Relations Institute (LRI) questions:

I know you’ll find it shocking, but the Chairman of this front group is CEO of American Income Life Insurance Company whose employees - according to a quick LRI Online search - turns out are represented by OPEIU Local 277. It’s easy to see why once you’re stuck with a union why you’d want to make sure everyone else was too - but I wonder how many non-union employers are on the list of 1,000 Employee Free Choice Act Supporters? I’m guessing not many.

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On this morning's "Morning Joe" on MSNBC, financial television personality and founder of TheStreet.com, Jim Cramer pronounced EFCA's "card check" provision to be "maybe the most important issue facing American companies right now."   Cramer included some dire predictions for retail if EFCA becomes law:

If they get card check I gotta tell ya, I think Wal-Mart... cut in half.  I think most of the department stores will suffer mightily.  There’s a lot… even Costco just trying to do a middle ground card check…

Perhaps even more surprising was the extent to which the rest of the guests -- including Mike Barnicle and New York Times financial reporter Andrew Sorkin -- piled on.  Here's the video:

More:

• "Jim Cramer: Mad Money and Card Check" -- TheTruthAboutEFCA.com
• "No Successful Unionized Companies?" -- Politico 
• "The Sorkin List; Successful Unionized Companies" -- TPM
• Sorkin also followed up with TPM later...

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We have noted a number of times before that for all the pre-election and early talk, EFCA has not at all been a top priority of the Obama administration to date.  The President has certainly declined to unequivocally state his support for the pending bill as currently drafted.  Now comes this from yesterday's press briefing with Press Secretary Robert Gibbs:

Q    Robert, the Employee Free Choice Act, you've got a full plate, but that seems to have gotten pushed aside.  There are some labor leaders who feel that there has not been enough vocal support from the administration on the Employee Free Choice Act.  So two questions:  Is this something the President supports, and is it a priority for this year?

MR. GIBBS:  I don't have anything new on it from what we've -- I don't know when the last time we were asked.  I think you heard the President talk about his support for it throughout the campaign, and it's obviously one of many things that we will work on throughout our time here.

Q    High priority for this year?

MR. GIBBS:  Let me check.  I believe it is -- I believe it is, again, something the President campaigned on and we'd like to see happen.

Yes, sir.

That is not likely to provide much comfort to the labor leaders referenced by the questioner.

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Regular readers of EFCA Report are up to speed on the status of President Obama's proposed nominees to fill two vacant slots on the National Labor Relations Board.  In late April, we featured two detailed posts on a number of issues the Board is likely to tackle once fully constituted, noting several areas where the "Obama Board" is likely to reverse positions in decisions handed down by the "Bush Board." 

Today's Wall Street Journal cites to our observations:

Law firms are advising corporate clients to be on alert. If confirmed by the Senate, the two new board nominees -- labor-side lawyers Craig Becker and Mark Pearce -- would join longtime member and chairman Wilma Liebman to create "a majority bloc distinctly in favor of expanding the rights of unions and workers," law firm McKenna Long & Aldridge LLP said in a report addressing issues likely to be revisited by the NLRB. "Employers must…prepare for the resulting shifts in the regulatory landscape."

Once new nominees are in place, the board will face a lengthy agenda of issues including: whether more workers whose jobs fall in the gray area between salaried management and hourly laborers should be allowed to unionize; how much freedom workers should have to use company email systems to promote union membership; how much access union organizers should have to workplaces; and what constitutes unacceptable intimidation by employers seeking to oppose union organizing drives.

An additional interesting item from the WSJ piece regarding the new Board and EFCA:

[Current Board Chair Wilma] Liebman said she is "agnostic" on the proposed Employee Free Choice Act, the labor-backed proposal in Congress that would make it easier for unions to organize workers without secret ballot elections as well as give federal arbitrators authority to impose contract settlements in cases where labor and management can't conclude deals.

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The Federalist Society hosts the latest installment of its Orginally Speaking series featuring a debate on EFCA with Richard Epstein (NYU/University of Chicago), Thomas Kochan (MIT), Eugene Scalia (Gibson, Dunn & Crutcher LLP), and Patrick Szymanski (Change to Win).  Among the notable quotables, echoing our observations about a recently released study, Mr. Scalia asserts:

As for the studies that purportedly link union decline to employer misconduct, they typically are unreliable on their face. One frequently-cited study by Professor Bronfenbrenner measured employer misconduct during organizing campaigns by surveying the union organizers. That’s like asking the Cleveland Cavaliers’ last opponent whether LeBron James got too many trips to the free throw line.  

The Hill has an interesting piece of broader significance on "micro-targeting" by lobbying and advocacy groups.  Included in the piece:

Alexander Gage helped President George Bush win reelection in 2004 by employing techniques that allowed the campaign to target its messaging to a few key groups. Now Gage, the CEO of TargetPoint Consulting in Alexandria, Va., says he is working on “four or five” public advocacy campaigns, a relatively new line of business for the firm.

His clients include a business group, which he declined to name, that is using microtargeting to find opponents of the Employee Free Choice Act, also known as card-check.

Technological advances and basic trial and error in past campaigns have improved microtargeting modeling, Gage said, enabling firms like his to better determine “what sequence of information is the most indicative of who is going to support you.”

Finally, at the America's Future Now conference, a gathering of progressive activists, Robert Borosage, co-director of the Campaign for America’s Future, told participants the Employee Free Choice Act is

essential to insuring that the blessings of the next prosperity will be widely shared, that the American middle class will expand, not decline, and that the progressive majority will be consolidated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• 54% of employers threaten workers in such meetings;

• 57% of employers threaten to close the worksite;

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

• 34% of employers fire workers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to Wednesday’s WSJ:

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

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

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

More:

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

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

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

How sad.  

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

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

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

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

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

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