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

Board Orders USPS to Turn Over Test Scores to Union: Dan Prochilo of Law360 ($$) writes that last Thursday, the National Labor Relations Board ordered the United States Postal Service to turn over the results of an aptitude test to union officials who were investigating potential improper hiring practices. The Board held that the union's stated goal of acting as hiring watchdog should be given priority over an employee's right to privacy.

"We find that the balance of interests favors requiring a limited disclosure to the union," the NLRB wrote, saying the union's need to see the scores in order to determine whether the USPS had broken its collective bargaining agreement with workers outweighed any damage that could be inflicted on the test takers through the publication of their scores.

The Board reasoned that the union had no plausible way of investigating the Postal Service's hiring practices without the test scores. Furthermore, the Board provided that the release of the test scores would not have a detrimental effect on the individual employees because they had all performed "exceptionally well." Neither party responded to requests for comment.

Proposed MN Law to Create Unions for Personal Attendants Stalls in Committee: Kare11.com writes that a proposed bill that would allow personal care attendants and home day-care owners to form unions has hit an impasse in the Minnesota State Senate. The proposed legislation, a major priority for local union leaders, would have led to votes by employees as to whether to organize. Members of the Senate Finance Committee stated that they expected the bill to come up again with some revised language. We will certainly keep you posted as the bill moves through the legislative process.

Columbia Grain Locks Out ILWU Workers: The Portland Business Journal reports Columbia Grain, a major grain operator working in the Portland area, has locked out International Longshore and Warehouse Union (ILWU) members as of this past weekend. Columbia alleges that the ILWU workers have engaged in a slowdown at the Port of Portland Grain Elevator because the employees have been working without a contract since September 30 of last year. We will keep you posted on any developments.
 

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Bankruptcy Court OKs Dewey WARN Class-Action: Maria Chutchian of Law360 ($$) reports that last Friday, a New York bankruptcy court signed a proposed consent order that would allow former Dewey and LeBoeuf employees to proceed with a collective WARN action. The Federal WARN statute provides that employers must provide workers with at least sixty-days' notice prior to any mass layoffs.

The class includes Dewey employees who worked at the firm’s New York and Washington, D.C., offices and were laid off about May 15, 2012. The workers claim they were not given the required notice for layoffs under state and federal law.

The suit seeks back pay for the late layoff notice, as well as attorneys' fees and costs. Interestingly, the notice of class action specifically states that there is currently no money to pay putative class members should they prevail.

MO Senate Gives Green Light to Union Paycheck Bill: Jordan Shapiro of the Kansas City Star writes that as of this morning, the Missouri Senate has given preliminary approval to a bill that would require public employees to sign consent forms before union fees could be deducted from their paychecks. The bill's current language is the result of tense negotiations between Republicans and Democrats in the chamber. Some Democrats, however, remain miffed.

“Hope someday people in this chamber will stop bullying labor and cherish them like I do,” Sen. Ryan McKenna, D-Crystal City, said.

The bill would also require annual consent forms before unions could spend public employee money on political campaigns. The current iteration of the bill excludes firefighters and police officers from its coverage, but that exemption will likely disappear when the bill is reconciled with the House.

TSA Screeners Union Opposes Knives at Checkpoints: Steve Strunsky of the New Jersey Star-Ledger reports that representatives of the Transportation Security Agency Screeners' Union have come out against the TSA's new ruling that would allow small pocket knives and golf clubs on airplanes.

"We believe it will be a very bad idea to allow knives at checkpoints," Jacqueline Simon, policy director for the screeners union, said in an exclusive interview last night.

Interestingly, the head of the TSA will defend the new ruling Thursday during a Homeland Security transportation subcommittee hearing. We will certainly keep you posted.

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Texas Legislature Introduces Secret Ballot Bills: Jess Davis of Law360 ($$) reports that identical bills have been introduced in the Texas House and Senate that would require labor union elections to be conducted by secret ballot. Furthermore, a majority of those who would be affected by union representation would have to sign on in order to approve union representation, as opposed to the current rule that only requires a simple majority of those voting. Texas Attorney General Greg Abbott heaped praise upon the legislation.

“By enhancing our existing protections for Texas workers and developing a Workers Bill of Rights, the initiatives announced today can help ensure that the state of Texas continues to be a national leader in job creation and economic prosperity,” Abbott said.

Labor leaders in the state decried the bill, saying it would have a negative impact on police and firefighters in particular. We here at @LRToday will keep you updated as this legislation moves forward.

MI Woman Files ULP Over Facebook Firing: Jonathan Lowe of WNEM.com reports that a woman in Saginaw, MI has filed unfair labor practice charges with the National Labor Relations Board against her former employer after being fired for comments she posted on Facebook. While the exact details are unclear at the moment, it appears that the former employee had made several disparaging comments about her employer on the popular social-networking site. When management discovered her postings, she was discharged.

If this case moves forward and is prosecuted by AGC Lafe Solomon, it could provide more needed-guidance regarding the Board's social media policies, which at the moment are unclear to say the least. We will be watching this case closely as it develops.

Labor Group in CA Pushing Immigration Reform: Andrew Galvin of the Orange County Register writes that members of the Orange County Labor Federation (OCLF) rallied in front of Anaheim City Hall yesterday in an effort to help stir up support for comprehensive immigration reform. The OCLF, in particular, is pushing for a path to citizenship for America's more than 11 million undocumented workers.

Tefere Gebre, executive director of the Orange County Labor Federation, which organized the event, said labor representatives will be "visiting every congressional office multiple times," activating a "heavy letter writing campaign" and running phone banks in a "good old grass roots campaign to do the right thing."

The OCLF has indicated that the rally was not a "press conference," but instead marked the beginning of a long and loud campaign advocating for reforms.

In related news, members of the AFL-CIO have been meeting with U.S. Chamber of Commerce advocates in order to come to an agreement regarding temporary visas for low-skilled workers. Thus far, little progress has been made. As any change in immigration policy will have a ripple-effect through the world of labor law, we will be following this story closely.

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Congress Reacts to President's Renominations of Block and Griffin: Yesterday, @LRToday reported that President Obama had resubmitted the nominations of Richard Griffin and Sharon Block, both Democrats, for positions on the National Labor Relations Board. The President's nominations have sparked varying reactions in Washington, according to Kevin Bogardus of The Hill. 

Republican Senator Tom Harkin (Iowa), chair of the Senate's Health, Education, Labor and Pension (HELP) Committee, stated that he was pleased with the nominations and also expressed hope that the President would nominate two Republicans to the Board as well.

Several House Republican leaders, including Speaker John Boehner (Ohio) and Majority Leader Eric Cantor (VA), also sent the President a letter requesting that he nominate "four qualified individuals" to the Board so that it would have a Constitutionally-sound quorum.

This is most likely the beginning and not the end of the fight over Board nominations. We will be watching closely and will keep you abreast of any developments.

United, Union Reach Tentatively Deal on New CBA: David McAfee of Law360 ($$) reports that United Continental Holdings Inc., which includes both United and Continental Airlines, has reached a tentative deal with the International Association of Machinists and Aerospace Workers that would cover over 30,000 employees.

“I want to acknowledge the hard work of the negotiating committee members in reaching these agreements,” Jon Roitman, senior vice president of airport operations for United, said Wednesday. “The agreements are an important part of working together to build the world's leading airline.”

The union also said that it would be briefing members on the terms of the proposed deal, with a vote to be conducted by mail soon after. We will keep you posted on the results.

Right To Work Bill Gaining Steam in Missouri: Elizabeth Crisp of the St. Louis Post-Dispatch writes that legislation that would make Missouri the most recent Right-to-work state is moving forward in the legislature. Both the House and the Senate have held hearings on the issue, with standing-room-only crowds attending both sessions.

"I’ve seen a momentum building around the country, and I don’t think it’s an issue that Missourians or our Legislature can simply ignore or avoid,” said House Speaker Tim Jones, Republican from Eureka who has signed on as a co-sponsor of right-to-work legislation here. “It may be a multiyear process because this is the first time — in a long time — these issues have been debated with this much attention."

Several legislators remarked off the record that it would be difficult to push the bill through, even with Republican veto-proof majorities in both Houses. We will keep you updated as this legislation moves toward a probable vote.
 

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In the two weeks following the D.C. Circuit Court of Appeals’ monumental decision in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2013), there have been a number of developments as employers, labor groups, and employees grapple with the practical implications of the court's holding that President Obama's recess appointments to the National Labor Relations Board are unconstitutional. However, none have provide much, if any, guidance.

Very shortly after the decision issued, NLRB Chairman Mark Pearce released a statement disagreeing with the D.C. Circuit's ruling and asserting that the Board believes that the recess appointments will ultimately be upheld. Accordingly, he stated that the Board will continue to perform its statutory duties and issue decisions despite the cloud over its authority.

Since then 38 Republican Senators have demanded that Members Block and Griffin resign. In addition, Republican Senators introduced three bills designed to limit the NLRB’s authority in the wake of Noel Canning: NLRB Freeze Act of 2013 (S. 180), Advice and Consent Restoration Act (S. 188), and Restoring the Constitutional Balance of Power Act of 2013 (S. 190). Given that both the Senate and the White House are controlled by Democrats, these bills have virtually no chance of becoming law and thus likely have no practical implications in the foreseeable future. 

As a result, all sides are looking for signals from the courts on how the recess appointments issue might ultimately be resolved. This week the focus was on U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia as they both turned down separate bids by HealthBridge Management LLC to appeal an order requiring it to reinstate striking nursing home center workers. HealthBridge sought a partial stay of a federal judge's December preliminary injunction under 10(j) of the NLRA based on the controversy over the NLRB recess appointments following Noel Canning and whether the Board would be able to issue a final order. Neither Justice Ginsburg nor Justice Scalia provided a reason for rejecting the applications, but given that there was no final order by the Board involved, this development likely provides no useful insight into how they might ultimately rule on the constitutionality of the recess appointments.

As such, two weeks to digest and react to Noel Canning has provided no clarity or certainty regarding its practical implications. Rather, employers, unions, and employees remain in a quandary as they try to determine the status of past Board decisions and election certifications and to navigate the NLRB processes going forward. Indeed, even the things we do know for certain today are likely to lead to more questions and uncertainty in the near future. Accordingly, 2013 will be a dynamic year for labor law with Noel Canning setting the stage as follows:

1. The Board will continue to hear and process petitions and unfair labor practice charges. First and foremost, the D.C. Circuit's ruling has no effect on the NLRB's ability to receive and process petitions and investigate and prosecute unfair labor practice charges that do not require any intermediary rulings by the Board. This means that the Agency will continue to operate as normal with the Regional offices processing petitions, holding elections, and investigating unfair labor practice charges. Similarly, administrative law judges will continue to hold hearings and issue recommended decisions. Moreover, given Chairman Pearce's statement, the Board will continue to act and issue decisions under the presumption--correctly or incorrectly--that it has a quorum to act under New Process Steel. Thus, each new Board decision--especially precedent altering decisions--will only complicate matters further.
2. The Board's 2012 (and 2013) decisions still remain Board law. Not only will the agency continue to operate as normal, but it will continue to apply all 2012 and 2013 decisions as governing Board law as the Board is not required to follow Noel Canning in other cases. This includes the flurry of late year decisions affecting dues checkoff, discretionary discipline, and confidential witness statements. As a result, expect the Regional offices, the Office of the General Counsel, the ALJs, and the Board to continue to rely upon those decisions in making their determinations despite any objection by the parties as to their validity.
3. The D.C. Circuit is going to see a lot more cases, but they may not be decided any time soon. Given that the D.C. Circuit (at least for the time being) has provided a guaranteed mechanism for overturning any decision by the current Board, any party aggrieved by a Board order is likely to file with the D.C. Circuit (all petitions for review of final orders by the Board may be filed in the D.C. Circuit in addition to the circuit where the case arose). However, after Noel Canning, the D.C. Circuit announced that it is holding all cases involving a Board decision since January 4, 2012 in abeyance. From an enforcement strategy, will the NLRB start racing respondents to the courthouse by immediately filing petitions for enforcement in other circuits immediately after issuing decisions?
4. The Notice Posting litigation is unaffected by Noel Canning. As the Board issued the Notice Posting rules in August 2011 just prior to then-Chairman Liebman's departure, the Board had a quorum to act when it issued its rules requiring employers to post notices about employees' rights under the Act.
5. But Noel Canning could impact the "Quickie Election" rules litigation and other pre-2012 decisions . The Board's new election rules purportedly issued in December 2011 were supported by only Chairman Pearce and Member Becker, whose term expired December 31, 2011. However, Member Becker was a recess appointee appointed by President Obama in March 2010. As such, the argument can be made under Noel Canning that Becker was not appointed during an intersession recess and thus there was no quorum in December 2011 when the new election rules were purportedly passed. Moreover, if Becker's recess appointment was unconstitutional, the decisions by the Board after Liebman's term expired are also invalid (such as D.R. Horton involving mandatory arbitration and class claim waivers). Further, what becomes of the decisions where Becker was the deciding vote on a three-member panel even when Liebman was still there, and does it matter from a practical standpoint? In case you were wondering, all four Members at the time participated in Specialty Healthcare, so it is unaffected by Noel Canning.

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It was going to be hard to top 2011 in terms of unique and dynamic labor law developments. But 2012 may just have lived up to the task.

Seeking to ensure that the Board would have a quorum to operate during the year, on January 4, 2012, President Obama attempted the "recess" appointment of three members.  Despite the controversy swirling about these appointments, the Board continued apace to expand the rights of employees and unions under the National Labor Relations Act.  Among the more notable results were the invalidation of class waivers and mandatory arbitration agreements; the further diminution of the facility-wide presumption in organizing cases; and a number of decisions tilting the balance in collective-bargaining negotiations.  At the same time, the Acting General Counsel continued to pursue an expansive agenda -- issuing numerous new complaints and explanatory memoranda in social media cases.

The courts, however, dealt the Board a series of blows throughout the year, dismissing the Board's challenge to Arizona's secret ballot amendment; and invalidating the Board's rule-making on required notice-posting and "quickie elections".  But no court action carried as much import as the January 2013 Noel Canning decision by the Circuit Court of Appeals for D.C. which declared the President's "recess" appointments unconstitutional, and found that the Board lacked a quorum to act throughout 2012.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way. Today we are publishing "Labor Law in 2012: A Year in Review." This brief summary highlights some of the most noteworthy developments in 2012. We hope you find it a helpful resource as we head into what is certain to be one of the most interesting years in labor law in some time.

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Following the Noel Canning decision of the D.C. Circuit Court of Appeals, NLRB Chairman Mark Gaston Pearce issued a statement that the Board would proceed with "business as usual". In response, yesterday Republican Senators Mike Johanns (R-NE), Lamar Alexander (R-TN) and John Cornyn (R-TX) introduced the “Restoring the Constitutional Balance of Power Act of 2013” (S. 190). The bill would prohibit the NLRB from making or enforcing any actions that require a quorum of Board members.

The bill is not yet available online except for this copy posted at the Senator's website. It states rather simply that:

No Federal funds may be used by the NLRB to undertake or enforce activities commencing on or after January 4, 2012, that require authorization by no less than a quorum of the members of the Board.

The bill would sunset at such time as there is seated a quorum of Board members who are approved with the advice and consent of the Senate.

This was at least the third such bill introduced this week in the wake of the ruling. Earlier, Sen. John Barasso introduced S. 180, a bill to delay the enforcement of any Board rulings; and Sen. Roy Blunt introduced S. 188, a bill to prevent the payment of salaries to Board members improperly appointed per Noel Canning.

All three bills have been designated for Committee.

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Right-To-Work Amendment Fails in VA Senate: Natalie Rodriguez of Law360 ($$) reports that a proposed amendment to the Virginia state constitution has failed in the Senate. The amendment, proposed by Sen. Richard Black (Republican), would have made Virginia a "Right to Work" state. The amendment would have prohibited a labor union from denying a non-member the right to work alongside that union.

“In a victory for Virginia's working families, a 'right to work' for less measure has failed in the state senate on a 20-20 tie vote ... Adding right-to-work to the constitution would have further entrenched a harmful policy already existing in Virginia state law,” the Virginia chapter of the AFL-CIO said in a statement on Monday.

The attempted Virginia amendment follows similar successful efforts in Michigan and Indiana. Further, similar right-to-work legislation is currently working its way through the Pennsylvania legislature. We will keep you updated as this legislation moves forward.

Outrage on NY Bus Driver Picket Line: Eyewitness News 7 reports that heated protests are occurring this morning on the picket line set up by New York City school bus drivers who are on strike over job protection issues. Yesterday, union officials and bus company management met at Gracie Mansion in an effort to end the nine-day strike. Furthermore, the National Labor Relations Board is currently examining the legality of the labor strike. A decision from the Board is expected in the coming days.

N.M. Hospital Staffing Issue to be Heard by NLRB: Phaedra Haywood of the Santa Fe New Mexican writes that an Administrative Law Judge will today entertain unfair labor practice allegations filed against Christus St. Vincent Regional Medical Center. The allegations stem from a dispute last summer wherein the Hospital refused to provide the National Union of Hospital and Health Care Employees (the Union) with certain information the union had requested regarding Hospital staffing needs.

Union officials and the Hospital have repeatedly been at odds in recent years over staffing levels, with the Union maintaining that the Hospital is dangerously understaffed. The two parties are currently in settlement talks which, if successful, would void the need for a Board hearing.

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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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Earlier this week, one new National Labor Relations Board rule was put on indefinite hold.  Now Senate Republicans are taking aim at another Board initiative set to go into effect on April 30, 2012 -- the rule designed to expedite union representation elections.  Earlier today, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee announced that next week the Senate will debate the the resolution of disapproval condemning the Board's rule.

The measure, S.J. Res 36, was introduced earlier this year by Sen. Enzi and forty-four other Senators under the Congressional Review Act (CRA).  Its target is the rule, announced by the Board just before expiration of former Member Craig Becker's term in December of 2011, which would shorten the time between the filing of an NLRB petition and the conduct of a union representation election.  Sen. Enzi announced that the resolution has been placed on the Senate legislative calendar and that debate on the resolution is expected on Monday and Tuesday of next week.  Of the Board's rule, Sen. Enzi said:

This rule was rushed into place by an agency that is bound and determined to stack the odds against American employers. ... Despite the fact that unemployment has remained above 8 percent for the past three years, and with small business growth being the most important factor in reversing the lackluster economy, the NLRB has chosen to impose new rules to aid big labor at the expense of employees, small business employers and the jobs they would create.

The CRA resolution is not the only measure aimed at blocking implementation of the Board's rule.  Months ago, Rep. John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed the House by a vote of 235-188.  The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights eliminated by the Board rule.  There is also litigation pending and both the U.S. Chamber of Commerce and the Board have filed dueling summary judgment motions which should be decided fairly soon.

Employers must stay tuned to developments.  Absent successful challenge by any one of these various approaches, the Board's new rule will go into effect April 30, 2012. 

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The Georgia State Senate Insurance and Labor Committee voted unanimously in favor of a bill that would prohibit mass and targeted picketing of private residences and require employers to post notices informing employees of their right to work without joining a labor union.

Picketing of Residences

Georgia Senate Bill 469 proposes to amend the Georgia code section relating to labor organizations and labor relations, which already prohibits mass picketing "at any place." The amendments would clarify that the prohibition on mass picketing includes private residences, and would prohibit any individual or organization from picketing a private residence:

that has or intends the effect of interfering with the resident's right to quiet enjoyment, or when such targeted picketing has or intends the effect of violence or intimidation.

The proposed prohibition comes on the heels of last year's well-publicized picketing by the Communications Workers of America of the residence of Verizon CEO Lowell McAdam (slide show here), as well as the Occupy movement's picketing outside the residences of General Electric's and Wells Fargo's CEOs. Fourteen Fortune 500 companies are headquartered in Georgia, and 32 Fortune 1000 businesses make Georgia their home base. Moreover, Atlanta is second only to New York and Houston in the number of Fortune 500 headquarters.

The bill would not apply to private residences that are also places of employment "when targeted picketing relates to or is targeted at such employment."

Notice of "Right to Work" Rights

In addition, perhaps inspired by the National Labor Relations Board's impending notice-posting rule, Senate Bill 469 also seeks to require private employers to:

post adequate notice informing employees of the rights under this Code section [i.e., the right to work without having to join a union or pay union dues and the right to decertify a union] at locations where notices are normally posted or, if no such normal location for posting exists, physically disseminate such notice to employees. A private employer may also, at its discretion, post such notices on the company's intranet or disseminate them via other electronic means of communication.

Finally, Senate Bill 469 would not allow employers to deduct union dues from an employee's wages unless the employee provides annual written authorization.

Potential Challenges

If Senate Bill 469 is ultimately enacted, it is likely to be challenged on constitutional and preemption grounds. However, it appears that the prohibition on targeted picketing of residences is likely to survive any constitutional challenge based on the First Amendment. The Supreme Court has held that municipalities can prohibit targeted picketing of residences without violating the First Amendment because "[e]ven protected speech is not equally permissible in all places and at all times." Frisby v. Schultz, 487 U.S. 474, 479 (1988). While opponents of the bill might claim that it is preempted by the National Labor Relations Act, the validity of that claim is questionable as it is well established that states can enact "right to work" laws, so it is doubtful that an ordinance requiring employers to notify employees of their "right to work" under state law is preempted by the Act.

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Forty-four senators including Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, today introduced a Resolution of Disapproval (S.J. Res 36) challenging the National Labor Relations Board's new rules expediting union representation elections. Passage of the Resolution, submitted under the Congressional Review Act (CRA), would allow Congress to stop implementation of the rule.

The Resolution reads, simply:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the National Labor Relations Board relating to representation election procedures (published at 76 Fed. Reg. 80138 (December 22, 2011)), and such rule shall have no force or effect. 

Senator Enzi had promised to file this Resolution following the Board's December announcement of the Final Rule.  Today, he said:

“This rule will make a fair system less fair for one side, and is being rushed into effect over tremendous objections. This is why I am joining with my fellow senators to stop this rule from going into effect and ambushing the small business job creators we need for our economic recovery.”

Expect a similar Resolution to be introduced in the House, where if put to a vote, it should pass with the Republican majority handily.  More interestingly, a CRA resolution of disapproval cannot be filibustered.  As it needs only a simple majority in the Senate to pass if acted upon during a 60-day window, it may come within a few votes -- as the current 53-47 breakdown between the caucuses.  This may be expected to put some pressure on moderate Democrats facing re-election this year in more conservative districts.  In any event, the Resolution would still be subject to certain veto by the President. 

Both the U.S. Chamber of Commerce and the Board have also recently filed dueling summary judgment motions in the Chamber's litigation to reverse the rule.

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2011 was the most dynamic year in labor law in quite some time.  Fueling many of the changes last year were the impending departures of National Labor Relations Board Chairman Wilma Liebman and Member Craig Becker. With no certainty as to when Liebman or Becker might be properly replaced, the Board acted aggressively while it still held a pro-labor majority and a quorum. In addition to the Board’s activity, the Acting General Counsel pursued an expansive agenda. In response to these efforts, Republican opposition in Congress attempted to rein the Board in via additional oversight and legislative efforts that failed to gain much traction.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way.  Today we are publishing "Labor Law in 2011: A Very Active Year in Review."  This brief summary highlights some of the most noteworthy developments in 2011.  We hope you find it a helpful resource as we head into what is already shaping up to be another "very active year." 

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National Journal reports that House and Senate leaders have announced an agreement on the long-awaited reauthorization of the Federal Aviation Administration (FAA).  The deal includes Republicans backing down on their effort to reverse the May 2010 rule issued by the National Mediation Board (NMB) which changed the 75 year-old method for counting votes in union representation elections under the Railway Labor Act (RLA):

Republican leaders agreed to remove the offending language in the FAA bill that would have rescinded a National Mediation Board rule set under the Obama administration that makes it easier for rail and aviation workers to unionize. The remaining disputes between Republicans and Democrats on the measure have been worked out in a gentlemen's agreement among congressional transportation gurus.

In exchange for Republicans dropping the NMB rule recission, Democrats have agreed to include a provision that would raise the threshold for rail and aviation workers expressing interest in forming a union from 35 percent to 50 percent. This would mark the first time that an FAA reauthorization included any NMB changes, which is likely to make organized labor uncomfortable. But it also appeases Republicans who were angered by the original Obama administration rule that nonvoting aviation and rail workers do not count as "no" votes in unionization elections.

Lawmakers also have agreed to public hearings for all substantial NMB rule-making and tweaks to the manner in which runoff elections will be held. (The procedural change will make it easier for a "no union" option to win.) The deal also includes several oversight reports from the Government Accountability Office.

Our previous coverage of the issue:

• "National Mediation Board (NMB) Changes Union Election Rules, Easing Unionization Process" -- May 12, 2010

• "Airlines Sue To Block Easier RLA Unionization Rules" -- May 19, 2010

• "National Mediation Board Issues Revised Representation Manual" -- August 24, 2010

• "Georgia Rep Introduces Bill to Reverse NMB Rule on Union Elections" -- February 14, 2011

• "Rep. Issa (R-CA) Seeks Information From National Mediation Board Regarding "Radical" Rule Change" -- May 19, 2011

• "FAA Furlough Likely to Continue for Weeks; Parties in Congress Differ on Impact of NMB Union Election Rule" -- August 3, 2011

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The National Labor Relations Board announced today that it has adopted a final rule amending its election case procedures to shorten the time between the filing of a petition and the conduct of an election. The rule will be published in the Federal Register on Thursday, December 22, and is due to take effect on April 30, 2012.

The Board asserts that under the new rule:

...regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.

There have been various attempts by lawmakers to undo this rule, including John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) which passed by a vote of 235-188 late last month.  That bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights. 

But it is not just the substance of the changes that opponents question.  Days before the NLRB held a unique "public" session to vote upon the proposed rule changes, Member Brian Hayes sent a highly critical letter to the House Committee on Education and the Workforce.  Member Hayes accused the Board majority of intentionally:

breach[ing] the Board’s internal operating rule and, for the first time in the history of this agency, not allow[ing] the requisite time for preparing or circulating a dissent. 

This afternoon, hours after the Board announcement of the final rule, Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, asserted that he would challenge the Board's actions:  

The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law.  I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. 

The Congressional Review Act (CRA) allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation.  According to Senator Enzi's office, a resolution of disapproval introduced under the CRA cannot be filibustered and needs only a simple majority in the Senate to pass if acted upon during a 60-day window.

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Earlier this month, Patrice Kunesh the Department of Interior's Deputy Solicitor for Indian Affairs sent a letter to National Labor Relations Board Acting General Counsel Lafe Solomon, urging the Board to exempt Indian tribes from coverage by the National Labor Relations Act.

Until 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino -- a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed. 

Deputy Solicitor Kunesh writes:

…I seek an opportunity to advance the Department’s position on the applicability of the NLRA to Indian tribes, articulated by the Tenth Circuit Court of Appeals, that Indian nations acting within their jurisdictions are exempt from the NLRA. See Dobbs v. Anthem Blue Cross and Blue Shield, 600 F.3d 1275, 1284-84 (10^th Cir. 2010); NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10^th Cir. 2002). As stated by the Tenth Circuit: “[R]espect for Indian sovereignty means that federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization. Dobbs, 600 F.3d at 1283.

Rather than advancing this position in a litigation context, I believe that there may be an opportunity to work together to address whether Congress intended the NLRA to apply to tribal government employers. It is undoubtedly within the NLRB’s power to consider whether its original interpretation of the government employer exemption, 29 U.S.C. §152(2), as implicitly exempting tribal governments acting within their territorial jurisdictions, correctly interpreted congressional intent, as Member Schaumber argued in his dissent in San Manuel.

This reaffirmation of Interior's view, and a request to resolve the issue with its fellow Executive agency outside of a "litigation context," comes as Rep. Kristi Noem's (R-SD) bill, "To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act," (H.R. 2335), sits in Committee.  Rep. Noem's bill, which has eighteen co-sponsors including Rep. Dan Boren (D-OK), would  clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty.  Over the summer, the U.S. District Court for the Western District of Oklahoma issued a preliminary injunction in The Chickasaw Nation v. National Labor Relations Board, Case No. CIV-11-506-W, enjoining the National Labor Relations Board from proceeding with an unfair labor practice hearing against the Chickasaw Nation, a federally-recognized Indian Tribe.

It would certainly seem that a larger consensus is gathering among administrative agencies, federal courts and at least some lawmakers with which the Board's current interpretation (San Manuel) is at odds.

More commentary and resources:

• "Update in Saginaw Chippewa Case Against NLRB" -- Turtle Talk
• "Interior Argues NLRB Not Applicable to Indian tribes" -- Workplace Prof Blog
• H/T: @DanielSchwartz

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On Wednesday, the NLRB voted 2-to-1 to approve a resolution to amend the rules and regulations related to its election process. Chairman Mark Pearce and Member Craig Becker voted in favor of the changes and Member Brian Hayes voted against them. The amendments that passed were trimmed from a more comprehensive set of proposed changes published in the Federal Register on June 22, 2011. The approved changes are intended to reduce litigation in election cases and will also significantly shorten the time between any pre-election hearing and the election date.

The approved changes will include:

a) giving hearing officers greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”

b) giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs

c) denying the parties the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election

d) eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election

e) clarifying the rules regarding a party’s ability to seek special permission to appeal a hearing officer ruling to the Board

f) giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes

The Board did not release the final rules that will amend or replace the existing language in the regulations. It also did not indicate when the new rules would become effective. Unless the language is already written and the date is already set, it is reasonable to believe both will be impacted when Member Becker’s recess appointment expires at the end of this month, leaving just two members on the Board.

At roughly the same time as the Board action, Congress passed a bill designed to undo parts of the proposed rule changes.  John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed by a vote of 235-188.  The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.

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In advance of today's 2:30 p.m. meeting of the National Labor Relations Board to vote on rule changes to expedite union representation elections, we revisited the redlined Rules previously issued by the Board.  Following the release of today's proposed Resolution by the Chairman, we have highlighted in yellow the portions of these changes which the Board will consider today.  (The blue and green annotations are the initial changes to the R&R proposed by the Board's June 2011 NPRM.)

But while the Board addresses its Resolution today, Congress too will be looking at this issue.  The House plans a floor vote this afternoon on John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094).  The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.

As noted yesterday, it will be an interesting day at the Board.  We will provide a recap of the day's developments later this evening.

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When we reported yesterday that the National Labor Relations Board announced it had scheduled a November 30th vote regarding "a small number" of the changes to its election procedures that the Board proposed back in June, we speculated that current Board dynamics might prevent the Board from adopting a wide range of the controversial measures included in the proposed rule.  Not so fast, it would seem...

In a letter sent yesterday by lone Republican Board Member Brian Hayes to Chairman John Kline (R-MN) of the House Committee on Education and the Workforce, Hayes expressed his serious concerns and more disconcerting circumstances than might have been anticipated:

My colleagues are committed to issuing a final R Case Rule before Member Becker’s recess appointment expires at the end of the current Congressional session.  …  I was further advised that in the event I did not agree with the final R Case Rule, it would, nonetheless, be approved and published based on their two-member vote.  Moreover, if, as will necessarily be the case, I am not afforded the requisite opportunity to review and draft a dissent to the rule, I was advised that I would be limited to doing so after publication of the rule.  … [T]hese actions would contravene long-standing Board tradition and the Board’s own operating rules.   These rules and traditions have been established to protect the legitimacy of the Board.  They cannot, in my view, simply be case aside in pursuit of a singular policy agenda without doing irreparable harm to the Board’s legitimacy.

This reported approach resembles that taken by the National Mediation Board, when in early 2010, following the appointment of a former union president to the Board, the agency excluded dissenting voices from the process of revising a decades-old election rule.  That change too was designed to facilitate private sector union organizing.  Member Hayes adds the troubling suggestion that his colleagues at the NLRB might not be simply considering this approach for the passage of this Proposed Rule, but for a variety of other pending Board matters as well:

…since Member Becker’s recess appointment will expire in less than 90 days, it is quite clear that the two Board members nevertheless intend to breach the Board’s internal operating rule and, for the first time in the history of this agency, not allow the requisite time for preparing or circulating a dissent.  Indeed, as noted above, I have been specifically advised of this fact both with respect to publication or a final rule and with respect to a number of significant cases currently pending before the Board.

Finally, his reference to  the "Workforce Democracy and Fairness Act" (H.R. 3094) in his letter's conclusion, suggests that the two-Member bloc may intend to pass some of the more radical changes included in the Proposed Rule after all:

...I note that my colleagues’ rush to final rulemaking judgment is taken in the face of active consideration of H.R. 3094, provisions of which are in direct conflict with the Board’s proposed Rule.  Although I make no comment concerning the merits of this legislative proposal, I believe its pendency provides yet another reason why my two colleagues should suspend their rulemaking efforts.

Circulation of this letter is certain to revive some of the calls for Member Hayes to step down in advance of the November 30th vote in order to deny the Board a quorum to act.  The legal reasoning laid out by Member Hayes in opposition to the Board's current course might suggest he thinks such drastic measures are unnecessary to prevent promulgation of this rule.  But this should make for an interesting next ten days at the NLRB.

More commentary and resources:

• "Labor Board May Speed Union Votes" -- New York Times
• "NLRB Expedites Action on Ambush Elections" -- House Committee on Education and the Workforce
• "NLRB Vote on Portions of Proposed Election Rule Imminent" -- Littler's Labor Relations Counsel blog
• "House Advances Bill Overturning NLRB Union Rule" -- The Hill's Floor Action blog

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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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Late last week, Senator Johnny Isakson (R-GA) introduced the Representation Fairness Restoration Act (S. 1843) -- legislation designed to reverse the National Labor Relations Board's August 26, 2011 decision in the Specialty Healthcare case. In that decision, the Board overruled 20 years of practice regarding how it determines the "appropriate unit" in non-acute health care facilities.  More importantly, however, the NLRB has clearly signaled that it now endorses Member Becker’s long held belief that smaller units -- such as units that consist of only one department, or perhaps even one job classification -- should be permitted, rather than the current NLRB preference of favoring “wall to wall” units.  Sen. Isakson's legislation would reinstate the long-standing standard for determining which employees make up an appropriate bargaining unit for the purposes of the NLRA.

The text of the bill is not yet available online, but more commentary is available:

• "Mini-Unions: Isakson is Right" - Savannah Morning News
• "Senate Bill Would Nullify Specialty Healthcare Decision" -- Littler's Labor Relations Counsel
• "RILA Welcomes Bill to Reverse NLRB Decision in Specialty Healthcare" -- Retail Industry Leaders Association

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In response to the National Labor Relations Board's proposed changes to the rules governing representation elections, the House Committee on Education and the Workforce voted to send Committee Chairman John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) bill to the floor earlier this week.

The bill would guarantee that no representation election is held within 35 days after the filing of a petition and provide for a two-week waiting period before the hearing could be held. In addition, the bill also seeks to undo the NLRB's recent decision in Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011), where the Board overruled 20 years of practice regarding how it determines the "appropriate unit" for the election.

When the NLRB announced its intent to change election procedures earlier this year, it claimed that "[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, the proposed amendments to the NLRB's Rules and Regulations will also 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.

The House bill follows on the heels of the Senate's “The Fair Representation in Elections Act of 2011” (S. 1425), which similarly requires that no election is held within 40 days after the filing of a petition.

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On September 15, 2011, the House of Representatives passed The Protecting Jobs From Government Interference Act (H.R. 2587) which would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer a business. The Democratic majority in the Senate caused many to reasonably ask whether the House action mattered, as the bill has little chance of success in being passed in that chamber. 

But in this political season, nothing can be taken for granted.  On September 20, Senator Lindsay Graham (R-SC) introduced the bill as an amendment  to S. 1599, the Labor-HHS Appropriations bill for FY 2012.  Hitched to that broader legislation, the issue's prospects found themselves dependent first on the action of the Appropriations Committee, and its 16-14 Democratic majority. 

Yesterday, Senator Mark Pryor (D-AR) joined the fourteen Republican Senators on the Committee in voting for the amendment -- but the opposition of the other fifteen Democrats resulted in the measure's failure. 

As noted above, and elsewhere, the Democrats still hold a majority in the Senate -- even with some conservative caucus members willing to depart the party-line.  That reality and President Obama's veto pen pose significant obstacles to enactment of Republican-backed House labor law bills.  But the unique circumstances surrounding the Board -- soon to be unable to act without a quorum of members, absent further Senate action -- during the highly charged political season already upon us may well continue to cause curious and unconventional legislative and administrative maneuvering to accomplish various ends.

Stay tuned...

More information and resources:

• "Manufacturers Urge Senate Committee to Pass Amendment to Rein in NLRB" -- NAM
• "NLRB Amendment Would Have Stopped Runaway Agency from Destroying Jobs" -- Sen. Mike Enzi (R-WY)
• "Senate panel rejects GOP bid to undercut NLRB" -- BusinessWeek
• "Unions Breathe Easier After GOP Assault on NLRB Fails" -- TMPDC
  
• "Update: You Stopped the Attack! Act Now to Stop the Latest Attack on the NLRB" -- AFL-CIO Now blog

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On September 13, 2011, Senate Majority Leader Harry Reid (D-NV) introduced President Obama’s “American Jobs Act of 2011” (S. 1549). The President has been on a barn-storming tour, urging passage of the bill as the nation’s unemployment rate remains north of nine percent. The Democratic National Committee has also launched a website to promote the proposed legislation – and a thorough summary of the bill's 155 pages can be found here.

The bill's introductory provisions include a standard requirement that all contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal government under the Act must pay Davis-Bacon prevailing wages.  Specifically, Section 5 reads:

SEC. 5. WAGE RATE AND EMPLOYMENT PROTECTION REQUIREMENTS.

(a) Notwithstanding any other provision of law and in a manner consistent with other provisions in this Act, all laborers and mechanics employed by contractors and subcontractors on projects funded directly by or assisted in whole or in part by and through the Federal Government pursuant to this Act shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code.

(b) With respect to the labor standards specified in this section, the Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C. App.) and section 3145 of title 40, United States Code.

(c) Projects as defined under title 49, United States Code, funded directly by or assisted in whole or in part by and through the Federal Government pursuant to this Act shall be subject to the requirements of section 5333(b) of title 49, United States Code.

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The House of Representatives today passed The Protecting Jobs From Government Interference Act (H.R. 2587) which would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer a business. The bill, introduced by Rep. Tim Scott (R-SC), on July 19, 2011 passed the House by a vote of 238-186.

The bill is aimed, in part, at stopping the NLRB from proceeding with its complaint against the Boeing Co. with respect to the opening of its new South Carolina facility.  By its terms, if it passes, the Act would apply to "any complaint for which a final adjudication has not been made by the date of enactment."  Rep. Scott was quoted in the Examiner:

“Today’s vote is important for our entire nation, as well as for my home district in South Carolina, where the NLRB is currently pursuing an agenda which, if successful, would kill thousands of jobs.... By removing the NLRB’s ability to dictate where private industry creates jobs, we are preventing an unelected, presidentially appointed government board from pitting state against state, inserting themselves into the business decisions of private companies, and scaring away investment in our nation.”

The bill passed largely along party lines -- as it did previously in Committee -- so it is little shock that House Democrats were quick to denounce the bill in strenuous terms.  The Education and the Workforce Committee Democrats posted on their website YouTube clips of Reps. George Miller (D-CA) and Robert Andrews (D-NJ) speaking critically of the bill on the House floor.

A related bill (S. 1523), introduced by Sen. Lindsey Graham (R-SC) is pending in the Senate.  

The Boeing case is currently proceeding before an NLRB administrative law judge in Seattle.

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Just over a week after the National Labor Relations Board held two days of hearings on its proposed rule to shorten the time between the filing of a petition and the conduct of a representation election, Senator Jim DeMint (R-SC) introduced “The Fair Representation in Elections Act of 2011” (S. 1425). The bill 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.

When the NLRB announced its intent to change election procedures earlier this year, it claimed that "[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, as many speakers opined during the July 18 and 19 hearings, the proposed amendments to the NLRB's Rules and Regulations will also 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.

At least six (6) other Republican Senators joined as original co-sponsors of DeMint's bill which is obviously directly at odds with the Board's efforts in this area.

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

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

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

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

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

More information and commentary:

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

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On Monday, the U.S. District Court for the Western District of Oklahoma issued a preliminary injunction in The Chickasaw Nation v. National Labor Relations Board, Case No. CIV-11-506-W, enjoining the National Labor Relations Board from proceeding with an unfair labor practice hearing against the Chickasaw Nation, a federally-recognized Indian Tribe. Relying on "a deep body of Tenth Circuit law expressing extreme deference to tribal sovereignty," the district court found that it had jurisdiction to enjoin the NLRB from proceeding with its hearing and that the Chickasaw Nation "is substantially likely to prevail on the merits of its claim for a declaratory judgment that it is not subject to the provisions of the NLRA."

The Chickasaw Nation holds a series of treaties with the United States and is governed by its citizen-elected government in accordance with the Chickasaw Nation Constitution. Through the Chickasaw Nation Division of Commerce, it operates gaming facilities on tribal trust property. Revenues generated by the Nation's Indian Gaming Regulatory Act (IGRA) gaming are used exclusively by the Nation to fund Tribal government operations or programs, or to provide for the general welfare of the Nation and its citizens, consistent with the requirements of IGRA. These functions and purposes include but are not limited to healthcare, education, law enforcement, youth and family services.

In granting the Chickasaw Nation's motion, the district court noted:

Because of the extraordinary number of tribes located within its jurisdiction, the Tenth Circuit is uniquely experienced in the application of the canons of Indian law. The Tenth Circuit has clearly held that "federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization." ... Such Tenth Circuit authority is in accord with the United States Supreme Court's holding that before a treaty right will be abrogated, there must be a "clear and plain" expression of Congress' intent to do so.

It is undisputed that the National Labor Relations Act makes no explicit reference to Indian tribes.

The district court acknowledged the District of Columbia Circuit's decision in San Manuel Indian Bingo & Casino, 475 F.3d 1306 (D.C. Cir. 2007).  In that case, the D.C. Circuit ruled that the NLRB does have jurisdiction over tribally owned businesses based upon a statement of questionable significance from a 1960 Supreme Court case that "a general statute in terms applying to all persons includes Indians and their property interests." Noting that the Tenth Circuit "firmly disavowed" the reasoning employed in San Manuel because the 1960 Supreme Court decision involved proprietary interests rather than sovereign interests, the district court found that it had jurisdiction to temporarily enjoin the NLRB from proceeding with its hearing against the Chickasaw Nation.

The district court's order comes on the heels of Rep. Kristi Noem's (R-SD) bill introduced on June 23, 2011, that seeks to clarify that the NLRB does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty. Prior to 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA, but that changed with the NLRB's San Manuel decision affirmed by the D.C. Circuit as noted above. Representative Noem's proposed legislation is intended to reverse the San Manuel decision.

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On Thursday, Rep. Kristi Noem, (R-SD), introduced legislation to clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty. The bill, "To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act," (H.R. 2335) was immediately referred to committee. The text is not yet available from the Government Printing Office.

Until 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino -- a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed.  Rep. Noem has announced that this bill is intended to reverse that decision, but also suggests that beyond the jurisdictional issue, it is intended to limit labor's influence. A statement accompanying her introduction of the bill asserts:

The legislation stands to defend tribal sovereignty and promote economic opportunities on reservations lands by eliminating ambiguity in existing federal law.

“As a matter of sovereignty, the tribes don’t need big labor meddling in their affairs,” said Rep. Noem. “By removing this ambiguity in the law we can promote economic development on tribal land because businesses, large and small, need more certainty before they can grow.”

The bill is co-sponsored by five other Republicans, including House Health, Education, Labor & Pensions Committee Chair Rep. John Kline (R-MN) and Presidential candidate Rep. Ron Paul (R-TX).

More commentary and resources:

• "Noem bill would ban National Labor Relations Board from tribal businesses" -- Mitchell Republic
• "Rep. Noem wants Tribal Sovereignty protected" -- KOTA-TV
  
• "Noem seeks to restrict NLRB jurisdiction, Big Labor from tribal businesses" -- Sioux City Journal's "Politically Speaking" blog
• Turtle Talk blog's "NLRB" posts
• Native American Rights Fund's Supreme Court Project -- San Manuel

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Last Friday, a subcommittee of the House Committee on Oversight & Government Reform held a hearing entitled "H.R. 735 And Project Labor Agreements: Restoring Competition & Neutrality To Gov't Construction Projects".  The bill number identified in the hearing title, introduced earlier this year by  Rep. John Sullivan (R-OK), is the Government Neutrality in Contracting Act (H.R. 735).   This and a similar bill (S. 119) would largely invalidate President Obama's Executive Order 13502. 

That EO, one of four issued during the President's first month in office in 2009, allows federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract.  A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site.

Witnesses at Friday's hearing included Daniel Gordon, the Administrator of OMB's Office of Federal Procurement Policy; Susan Brita, Deputy Administrator of the GSA; Maurice Baskin, Esq., of Venable LLP; David Tuerck, Executive Director of the Beacon Hill Institute; Kirby Wu, of Wu & Associates; and Mike Kennedy, Esq., of the Associated General Contractors of America.

The prepared statements and submissions of these witnesses are linked above, and the video of the hearing is available at the Committee's website.

More resources & information:

• "ABC Testifies on Problems with Project Labor Agreements Before House Committee" -- PR Newswire
• "Republicans challenge Obama guidance on labor agreements in contracts" -- GovExec.com
• Labor Relations Today's "Project Labor Agreements" tag
• MLA Government Contracts Advisory, “President Obama Signs Executive Order Allowing Agencies to Require Project Labor Agreements (PLA’s) on Large Construction Projects,” Feb. 10, 2009.
• "Project Labor Agreements: A Better Deal For All" -- The White House Middle Class Task Force

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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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Yesterday, Senator Lamar Alexander (R-TN) took to the floor of the Senate to introduce the "Jobs Protection Act" (S. 964).  The bill, co-sponsored by Senators Jim DeMint (R-SC) and Lindsay Graham (R-SC) and thirty-one other Republican Senators, would by Sen. Alexander's description:

• clarify that the NLRB would not be able to order an employer to relocate jobs from one location to another.

• guarantee an employer the right to decide where to do business within the United States.

• protect an employer’s free speech regarding the costs associated with having a unionized workforce without fear of such communication being used as evidence in an anti-union discrimination claim

The text of the bill, currently identified as "A bill to amend the National Labor Relations Act to clarify the applicability of such Act with respect to States that have right to work laws in effect" is not yet available online.  Senator Alexander last week, however, submitted a proposed amendment to a small business bill intended to accomplish the same stated intentions.  The Senator's comments today suggest that the stand-alone legislation may contain additional or broader language than the amendment previously submitted.  We should know shortly.

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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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During floor debate on the SBIR/STTR Reauthorization Act (S. 483), Senator Lamar Alexander (R-TN) announced that he, Senator Jim DeMint (R-SC) and Senator Lindsay Graham (R-TN) would be introducing a bill entitled the "National Right to Work Protection Act."  Sen. Alexander introduced the proposal thus:

I rise today to talk about a piece of legislation which will be both a bill that Senator Graham and Senator DeMint and I will introduce tomorrow and an amendment that I have filed to the small business bill on behalf of the three of us.

We are calling it the Right to Work Protection Act, and it is our intent to preserve the right of each State to make a decision for itself about whether it will have a right-to-work law and have an ability to enforce it. ...

The text of the stand-alone bill is not yet available online, but the language submitted as Amendment SA 303 reads as follows:

 SEC. __. PROTECTION OF RIGHT TO WORK.

    (a) Applicability of NLRA to State Right to Work Laws.--Section 14 of the National Labor Relations Act (29 U.S.C. 164) is amended by striking subsection (b) and inserting the following:

    ``(b) Nothing in this Act shall be construed to limit the application of any State law that prohibits, or otherwise places restraints upon, agreements between labor organizations and employers that make membership in the labor organization, or that require the payment of dues or fees to such organization, a condition of employment either before or after hiring.''.

    (b) Applicability of Railway Labor Act to State Right to Work Laws.--Title II of the Railway Labor Act (45 U.S.C. 181 et seq.) is amended by adding at the end the following:

   ``SEC. 209. EFFECT ON STATE RIGHT TO WORK LAWS.

    ``Nothing in this Act shall be construed to limit the application of any State law that prohibits, or otherwise places restraints upon, agreements between labor organizations and carriers that make membership in the labor organization, or that require the payment of dues or fees to such organization, a condition of employment either before or after hiring.''.

Presumably the bill will be identical.  Senator DeMint previously introduced a National Right to Work bill (S.504) along with seven co-sponsors.  That bill, which would prohibit requiring union membership or dues payment as a condition of employment nationwide, has been referred to the Senate HELP Committee.

More commentary:

• "NLRB's Complaint Against Boeing Inspires Legislation" -- NAM's Shopfloor.org blog
• "Graham, DeMint, Alexander Propose Law to Protect Right to Work States" -- Charleston Regional Business Journal
• "Right to Work: Senate Republicans Pick Fight With Labor Board" -- Huffington Post
• "GOP Senators Respond to NLRB's Boeing Decision" -- The Hill (blog)

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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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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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Senator Jim DeMint (R-SC) has introduced a National Right to Work bill in the Senate, joined by seven Republican original co-sponsors.  In a statement issued earlier today, Senator DeMint identified Senators Tom Coburn (R-OK), Orrin Hatch (R-UT), Mike Lee (R-UT), Rand Paul (R-KY), James Risch (R-ID), Pat Toomey (R-PA) and David Vitter (R-LA) as co-sponsors of the National Right to Work Act.  

"Right-to-Work" laws generally prohibit "union security" agreements -- or contract provisions between unions and employers making membership or payment of union dues or fees a mandatory condition of employment.  A union security agreement is generally a permissible exception to the National Labor Relations Act's prohibition against discrimination based on union membership or support.  The 1947 Taft-Hartley amendments to the Act, however, added subsection 14(b), allowing states to pass "right to work" laws to prohibit unions and employers from agreeing to "union security" clauses -- contract provisions which require union membership as a condition of employment.  There are currently 22 so-called "right to work" states in the U.S.

The text of Senator DeMint's bill is not yet available, but presumably it would codify in the NLRA language similar to any one of the various state provisions which outlaw mandatory dues provisions.  UPDATED (6:00 pm): The National Right to Work Act would strike the provisions of Section 8(a)(3) and Section 8(b) of the NLRA, and Section 2(11) of the Railway Labor Act, which exempt "union security" agreements from prohibitions against discrimination based on union membership or support.

In introducing the bill, the Senators point to a recent poll by the National Right to Work Foundation which reported:

Eighty percent supported the Right to Work principle that union membership and dues payment should be voluntary and not required as a condition of employment.

Senator DeMint's statement asserts:

“No American should be forced to join a union and pay dues to get a job in this country,” said Senator DeMint. “Many Americans are already struggling just to put food on the table, and they shouldn’t have to fear losing their jobs or face discrimination if they don’t want to join a union. Forced-unionism shields unions from member accountability and has a detrimental effect on the economy. In states where companies are forced to hire only union workers, businesses have struggled to compete while they deal with counterproductive work rules.”

Conversely, in previous sessions of Congress, Rep. Brad Sherman (D-CA) introduced legislation to strip Section 14(b) out of the NLRA, nullifying state Right-to-Work laws.  When he introduced the most recent version, H.R. 6384, in October 2010, the Congressman explained his position thus:

“...Right-to-work laws strip unions of their legitimate ability to collect dues, even when the worker is covered by a union-negotiated collective bargaining agreement. This forces unions to use their time and members’ dues to provide benefits to free riders who are exempt from paying their fair share....  These laws are harmful to states like California, which allows labor unions to organize, because now we have to compete with the race to the bottom as our companies have to compete with those where the workers would like better wages, working conditions and benefits but are unable to organize to get them.”

UPDATED:  A copy of Senator DeMint's proposed bill is here.

(H/T: Senatus blog)

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On Wednesday, Rep. John Sullivan (R-OK) introduced a bill designed to reverse President Obama's Executive Order 13502.  That EO, one of four issued during the President's first month in office in 2009, allows federal executive agencies to require contractors on large-scale government construction projects to enter into a project labor agreement as a condition of being awarded a contract.  A “project labor agreement” (PLA) is a pre-hire collective-bargaining agreement – often involving multiple employers and multiple unions – designed to systemize labor relations at a construction site.

Rep. Sullivan's Government Neutrality in Contracting Act (H.R. 735) and a similar bill (S. 119) would largely invalidate the President's Order in the absence of special circumstances.  Section (a) of the bill states:

(1) GENERAL RULE- The head of each executive agency that awards any construction contract after the date of enactment of this Act, or that obligates funds pursuant to such a contract, shall ensure that the agency, and any construction manager acting on behalf of the Federal Government with respect to such contract, in its bid specifications, project agreements, or other controlling documents does not--

(A) require or prohibit a bidder, offeror, contractor, or subcontractor from entering into, or adhering to, agreements with 1 or more labor organizations, with respect to that construction project or another related construction project; or

(B) otherwise discriminate against or give preference to a bidder, offeror, contractor, or subcontractor because such bidder, offeror, contractor, or subcontractor--

(i) becomes a signatory, or otherwise adheres to, an agreement with 1 or more labor organizations with respect to that construction project or another related construction project; or

(ii) refuses to become a signatory, or otherwise adhere to, an agreement with 1 or more labor organizations with respect to that construction project or another related construction project.

President Obama's EO 13502 encouraged federal agencies to use PLAs on any construction project worth more than $25 million, but did not require them.  It did also require the O.M.B. to investigate expansion of the use of PLAs on federal construction projects.  The White House's related statement of policy explained the goals of the EO as follows:

The use of a project labor agreement may prevent these problems from developing by providing structure and stability to large-scale construction projects, thereby promoting the efficient and expeditious completion of Federal construction contracts. Accordingly, it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement.

Law360 reports that Rep. Sullivan sent out a letter to his colleagues earlier this week describing the Executive Order as an “'anti-competitive and costly measure encouraging federal agencies to mandate union favoring” agreements that raise construction costs from 12 to 18 percent":

“In short, government-mandated PLAs are nothing more than schemes to repay big labor bosses for political support by steering lucrative federal construction contracts to unionized companies and their unionized workforces,” Sullivan said.

“Instead of pandering to special interests, Congress should be doing all it can to ensure fair and open competition on federal construction contracts, and help deliver to taxpayers the best possible construction project at the lowest possible price,” he said.

The House bill has 23 co-sponsors.  Committee hearings are expected on the bills soon.

More resources and commentary:

• MLA Government Contracts Advisory, “President Obama Signs Executive Order Allowing Agencies to Require Project Labor Agreements (PLA’s) on Large Construction Projects,” Feb. 10, 2009.
• Federal Acquisition Regulation council (FAR) Final Rules implementing EO 13502
• Brett McMahon of the Association of Builders and Contractors (ABC) discussing EO 13502 on Fox News
• "Project Labor Agreements: A Better Deal For All" -- The White House Middle Class Task Force
• Labor Relations Today's Project Labor Agreements tag

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As we reported yesterday, Rep. Tom Price (R-GA) introduced an amendment to H.R. 1, the Full-Year Continuing Appropriations Act  to defund the National Labor Relations Board for the remainder of the 2011 Fiscal Year.  In response to an inquiry about this proposal, Rep. Price told Labor Relations Today:

The spending spree in Washington has put our nation on a perilous path to fiscal ruin.  House Republicans understand we need to cut spending immediately to help get our economy growing and more Americans back to work.  Every step we can take to responsibly rollback the cost of government is important.  By striking $233 million in funding for the National Labor Relations Board, we can save taxpayer dollars and help protect American job creators from an out-of-control agency bent on installing ‘card check’ (Secret Ballot Destruction Act) via regulations and circumventing the will of the American people.

The House Clerk's minutes of the Floor proceedings overnight indicate that following debate on the Amendment, the Chair announced approval by a voice vote.  Rep. George Miller (D-CA), Ranking Member of the Committee on Education & the Workforce, then demanded a voice vote, which resulted in postponement of further proceedings:

12:01 A.M. - Amendment offered by Mr. Price (GA).

An amendment numbered 410 printed in the Congressional Record to eliminate funding for the National Labor Relations Board.

DEBATE - The Committee of the Whole proceeded with debate on the Price (GA) amendment under the five-minute rule.  

12:15 A.M. - POSTPONED PROCEEDINGS - At the conclusion of debate on the Price (GA) amendment, the Chair put the question on adoption of the amendment and by voice vote, announced that the ayes had prevailed.  Mr. George Miller (CA) demanded a recorded vote and the Chair postponed further proceedings on the question of adoption of the amendment until a time to be announced.

It appears that late this morning, the House took a recorded roll call vote (No.75) and the amendment failed.

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The House continues its consideration of H.R. 1, the Full-Year Continuing Appropriations Act for FY2011.  This bill, if passed, will make appropriations for the continuing operation of the various federal government agencies through September 30, 2011.  As reported by The Hill several hundred additional amendments have recently been introduced, which are taking up considerable time in the debate.

Among the amendments introduced is C.R. 578, introduced by Rep. Tom Price (R-GA), to defund the National Labor Relations Board, as follows:

At the end of the bill (before the short title), insert the following:

Sec. __. None of the funds made available by this Act may be used to pay the salaries and expenses of personnel to carry out and implement the National Labor Relations Act (29 U.S.C. 151 et seq.)

Indeed, there are several hundred similar proposals to defund this or that amongst the offered amendments to H.R. 1, and many will fall victim to political horse-trading and debate as the Republicans and Democrats work to finalize a bill to continue funding Department of Defense appropriations, among other things.  Yet on the heels of last Friday's House Committee hearing on the new "aggressive" tone of the National Labor Relations Board, and the Board Chairman's assertive response, this would seem to provide a harbinger of things to come with respect to Congressional oversight of the agency.

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The Acting General Counsel of the National Labor Relations Board has responded to the joint letter by the Attorneys General of Arizona, South Carolina, South Dakota and Utah proclaiming their intent to defend their state constitutions against any NLRB litigation to invalidate recent secret ballot amendments.

On Friday, January 14, 2011, the Acting GC advised the Attorneys General of these four states that he believed the National Labor Relations Act preempted their states' constitutional amendments to require the use of secret ballots in union representation elections.  He requested a response from the states within two weeks, and threatened a federal lawsuit unless the states stipulated that their secret ballot provisions were unconstitutional.

Last week, the states sent a letter back rejecting the Board's assertion and refusing to "stipulate to the unconstitutionality" of the state amendments.  The AGs' letter defended the significance of secret ballots in union representation elections, and urged the Board to reconsider its threat to litigate.

By letter yesterday, the Acting GC advised the four states:

As you have unanimously expressed the opinion that the State Amendments can all be construed in a manner consistent with federal law, I believe your letter may provide a basis upon which this matter can be resolved without the necessity of costly litigation.  My staff will shortly be in contact with the staff members you have designated to explore this issue further.

Employers in all fifty states should continue to follow these developments.  The results of these discussions should reveal a bit more about the extent to which the Board will seek to elevate alternative methods of designating a union representative.

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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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Today's Washington Post's "Capital Business" section published a piece I wrote about what to expect from labor law developments during the coming months.  The intro:

When President Obama took office in early 2009, many expected significant legislative changes in the area of traditional labor law to facilitate union organizing in the private sector. But the new Republican majority in Congress on the one side and the Democrats' simple Senate majority and presidential veto pen on the other make passage of sweeping legislation like the Employee Free Choice Act -- or for that matter the converse Secret Ballot Protection Act -- all but impossible.

Employers should still expect significant changes, however, as the president will instead advance his regulatory agenda administratively through the National Labor Relations Board (NLRB) and the issuance of executive orders. If you're running a nonunion workplace today, these developments will make it easier for unions to organize your employees. Regardless of one's personal feelings about unions or union representation, there's no question that this increased government oversight, regulation and involvement will have a significant impact on large and small businesses alike.

Read the rest here.

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This past Friday, January 14, 2011, the National Labor Relations Board advised the Attorneys General of four states – 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. Letters sent by Acting General Counsel Lafe Solomon assert that these amendments, approved by voters in each of these states last November, conflict with Section 7 of the National Labor Relations Act.

In the letters, Acting GC Solomon cites Linden Lumber Division v. NLRB, 419 U.S. 301 (1974) and NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) for the proposition that federal law provides employees two different paths to pursue the Section 7 right to choose a representative: a secret ballot election or voluntary recognition. The state constitutional amendments, however, require only secret ballot elections to select union representation according to the Acting GC’s letters. Accordingly, the letters assert these conflicting amendments are preempted by operation of the Supremacy Clause set forth in Article VI of the U.S. Constitution.

Acting GC Solomon requested responses from the states within two weeks. If the states refuse to acknowledge that these provisions are unconstitutional, the Board has indicated it will initiate civil actions in federal court to have them invalidated.  When we reported on similar efforts by states in early 2009, we noted that federal preemption principles would likely pose significant legal challenge to the enforcement of these state provisions.  It seems we will soon find out.

More commentary, resources:

• "State Constitutional Amendments Conflict with NLRA" -- NLRB Fact Sheet
• "NLRB: Federal Law Pre-Empts State Secret-Ballot Amendments" -- AFL-CIO Now blog
• "NLRB: State Secret Ballot Measures Are Pre-Empted" -- Workplace Prof Blog
• "Obama Admin Bullies States Over Card Check Rules" -- Washington Examiner "Beltway Confidential"

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On the first day of the new Congress, Rep. Jason Chaffetz (R-UT) introduced a House Resolution:

Expressing the sense of the House of Representatives that the Federal Government should not bail out State and local government employee pension plans or other plans that provide post-employment benefits to State and local government retirees.

The Resolution lays out a litany of financial challenges facing the federal government, state and local governments, Social Security and related trust funds, and various government employee pension funds.  Most critically, the Resolution asserts:

numerous State and local government employee pension plans have offered overly generous retirement benefits to its employees and are in dire financial situations with combined unfunded liabilities up to $3 trillion...

Substantively, the Resolution declares:

(1) the Federal Government should not bailout State and local government employee pension plans and other post-employment benefit plans; and

(2) State and local governments should immediately institute reforms to their employee pensions plans, including replacing defined benefit plans with defined contribution plans.

As this is a simple Resolution, it will not advance toward promulgation as an actual law.  The result of a House vote on this, however, may very well impact how state and local government approach what has become an extremely pressing issue.

More Resources and Commentary:

• "Chaffetz Introduces Legislation Opposing Bailout of State/Local Government Employee Pension Funds" -- Rep. Chaffetz press release
• "Chaffetz takes aim at unfunded pensions" -- Salt Lake Tribune
• "Unionized public employees being used as scapegoats for financial crisis" -- SEIU blog
• "The Texas Omen" -- Paul Krugman in New York Times
• "Another Union Created Bailout?" -- LRI Online
• "Robert Creamer: Time to Stand Up For The Public Sector" -- Huffington Post

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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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Last week, amid a flurry of late-session proposals, Rep. Brad Sherman (D-CA) introduced H.R. 6384, "To repeal a limitation in the Labor-Management Relations Act regarding requirement of labor organization membership as a condition of employment."  Put more simply, the bill would nullify the right of states to enforce "right to work" statutes. 

The 1947 Taft-Hartley amendments to the National Labor Relations Act added subsection 14(b), allowing states to pass these "right to work" laws to prohibit unions and employers from agreeing to "union security" clauses -- contract provisions which require union membership as a condition of employment.  There are currently 22 so-called "right to work" states in the U.S.

The text of Rep. Sherman's bill is unavailable at the GPO at this time, but he introduced a similar bill in the 110th Congress.  H.R. 6477, introduced in July 2008, states only:

Section 14(b) of the Labor Management Relations Act (29 U.S.C. 164) is amended by striking subsection (b) and redesignating subsection (c) as subsection (b). 

We might safely assume that H.R. 6384 will be similarly pithy.  Regarding the introduction of this measure, the Congressman issued a statement including the following explanation:

“I do not believe that there should be a right to be treated unfairly or to endure unnecessary restrictions. Right-to-work laws strip unions of their legitimate ability to collect dues, even when the worker is covered by a union-negotiated collective bargaining agreement. This forces unions to use their time and members’ dues to provide benefits to free riders who are exempt from paying their fair share....  These laws are harmful to states like California, which allows labor unions to organize, because now we have to compete with the race to the bottom as our companies have to compete with those where the workers would like better wages, working conditions and benefits but are unable to organize to get them.”

At the time of this posting, there were 17 Democrat co-sponsors of Rep. Sherman's bill -- up from 8 co-sponsors for his 2008 effort.

More commentary:

• "BREAKING: Democrat Introduces Legislation to End Right-To-Work States" -- LaborUnionReport at RedState.com
  
• "U.S. House Representatives Attempting to Repeal Right to Work Laws" -- National Right to Work Committee
• "Right to Work for Less" -- AFL-CIO Legislative Action Center

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Workplace Prof Blog today highlights a piece by professor/blogger Paul Secunda in CCH Employment Law Daily regarding a state “captive audience speech law.”  While these bills have been proposed in various states, the particular object of Professor Secunda’s presdcritique is 2009 Wisconsin Act 290, enacted on May 12, 2010.  The Act amended Wisconsin’s employment discrimination laws to add protections against discrimination on the basis of an employee’s

…declining to attend a meeting or to participate in any communication about religious matters or political matters.

Earlier this month, the Metropolitan Milwaukee Chamber of Commerce filed suit in federal court seeking to have the law declared unconstitutional.  According to his blog’s excerpt of the CCH piece, Professor Secunda believes the law should be upheld:

A finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship….”   Indeed, a number of well-known exceptions exist to the Machinists preemption doctrine, in the area of state police powers and the regulation of property rights. Under this line of cases, traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption.

There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Consistent with Section 8(c) of the NLRA, employers can still inform employees of their views of unionization, but may not force employees into mandatory meetings to hear those views under Wisconsin’s Act 290.

We have previously identified arguments by proponents of labor law reform that the law should allow greater union access to private employer property, or to restrict employers' exclusive use to address union representation.  These state statutes and the attendant litigation are the current front lines of that debate.

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The Wall Street Journal (subscription) ran a piece this weekend highlighting again the dire state of multi-employer pension plans in the U.S.  THe WSJ criticizes the Create Jobs & Save Benefits Act of 2010 (S. 3157), introduced by Senator Bob Casey (D-PA) back in March:

Congress is gone for August—heaven be praised—but that hasn’t stopped unions from quietly mobilizing to push through a big new priority this fall: a pension bailout. Big Labor is going Code Red on the issue, in the face of a looming accounting change that would force companies to confront the Ponzi-style nature of multi-employer pension plans.

We wrote in June about this class of some 1,500 union-run retirement vehicles, in which companies across an entire industry pay into a single pension pool. Hundreds of these multi-employer pools are badly underfunded, thanks to years of labor funneling money into new pay and benefits, rather than into the funds for retirees.

The big problem with these plans is that when one company in the pool goes out of business, the other companies remain on the hook for the cost of the plan. These spiraling liabilities inspired Pennsylvania Senator and Big Labor favorite Bob Casey to introduce legislation to cordon off “orphaned” pensions—those for which an employer has stopped contributing or withdrawn from the plan—and drop them on the federal Pension Benefit Guaranty Corporation.

The PBGC is already significantly underfunded and taxpayers are its ultimate backstop. Yet the Casey bailout could dump as much as $165 billion in new liabilities on the PBGC, while multi-employer plans would get a clean bill of health. What a deal…

In a press release, Senator Casey blamed the pension crisis on the current recession, and on employers who ceased making contibutions and closed as a result.  While the current environment certainly has not made matters any better, the serious underfunding of multi-employer pension plans pre-dates the present state of the economy.  In the summer of 2008, Hudson Institute fellow DIana Furchtgott-Roth highlighted this serious problem in a research paper entitled "Union vs. Private Pension Plans: How Secure Are Union Members' Retirements?"  She studied and reported alarming rates of underfunding as of 2005.

There were critics of the Employee Free Choice Act who believed that bill was motivated primarily by the potential benefits to underfunded pension fund brought about increased union density.  In any event, whether by such indirect or more direct legislative or regulatory action, it appears that addressing the state of multi-employer pension plans will become a hotter topic in the very near future.

More commentary:

• "Building a Secure Future for Multi-Employer Pension Plans" -- Senate HELP Committee Hearing (video and printed testimony available)
• "Why Democrats are Pushing the $165 Billion Union Pension Bailout Bill" -- Competitive Enterprise Institute
• Miller & Long VP Brett McMahon on Fox Business News -- via Halt The Assault's YouTube channel
• "Pension Bill Stalled in Senate" -- Teamsters for a Democratic Union

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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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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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Last night, Senate Majority Leader Harry Reid (D-NV) proposed an amendment (S. Amdt. 4174) to an Emergency Supplemental Appropriations bill that would extend collective-bargaining rights to all public safety workers employed by states or localities.  In its findings, the language includes:

    (4) The absence of adequate cooperation between public safety employers and employees has implications for the security of employees and can affect interstate and intrastate commerce. The lack of such labor-management cooperation can detrimentally impact the upgrading of police and fire services of local communities, the health and well-being of public safety officers, and the morale of the fire and police departments. Additionally, these factors could have significant commercial repercussions. Moreover, providing minimal standards for collective bargaining negotiations in the public safety sector can prevent industrial strife between labor and management that interferes with the normal flow of commerce.

    (5) Many States and localities already provide public safety officers with collective bargaining rights comparable to or greater than the rights and responsibilities set forth in this title, and such State and local laws should be respected.

The amendment language is identical to the Public Safety Employer-Employee Cooperation Act of 2009 (S. 1611) introduced in March 2009 by Sen. Judd Gregg (R-NH). This bill had been introduced in successive congressional sessions since the 1990’s, including the 110th Congress, where it had strong bipartisan support before faltering. As reported earlier this year in The Hill:

In 2007, the bill passed the House with more than 300 votes and was in a strong position to clear the Senate. But President George W. Bush issued a veto threat and the Senate bill’s lead Democratic sponsor, the late Sen. Edward Kennedy (D-Mass.), fell ill. The legislation then became overrun with amendments and subsequently fizzled on the Senate floor.

On March 10, 2010, the House Education and Labor Committee held hearings on the bill, transcripts of which are available here.  Seeing as there were at least five GOP co-sponsors to Sen. Gregg’s similar bill, it is highly likely that this amendment will pass and become part of the Supplemental. Deliberation on the Amendment and Supplemental is scheduled to resume today.

More coverage:

• "Unclear if war supplemental will steer clear of add-ons" -- GovExec.com
• "Hearing Held on Bargaining Bill" -- IAFF website 
• "Collective Bargain Vote Today?" -- Greensboro (NC) News-Record

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In general, employers increasingly are classifying primarily low-wage workers as independent contractors instead of employees in the construction, home care and health care, professional and technical, and broadcast industries, Lurye said. By doing so, employers can issue these workers 1099 forms instead of W-2 forms to report their income, he said.

 

“So what's the big deal?” Lurye asked. “The big deal is this — by doing that, they immediately gain a 30 percent advantage over an employer who complies with the law.”

 

That percentage is calculated from the savings the employer obtains from not withholding federal and state income taxes, FICA, FUTA, state workers' compensation, and state unemployment insurance premiums from employee pay, he said.

 

Lurye said items not withheld by the employer “become the individual's responsibility when he or she has to file their federal and/or state income tax returns.”

 

Additionally, workers themselves are adversely impacted by misclassification because they do not qualify for fringe benefits they would normally be entitled to as employees, he added. For example, for workers classified as independent contractors, no contributions are made on the worker's behalf to any employer-based pension, health, or welfare plan, he said. Independent contractors also are not be entitled to unemployment or workers' compensation benefits, Lurye added.

• require additional recordkeeping regarding the hours, remuneration and work performed by all workers;
• require that all workers be provided with notice of their classification status and related rights;
• create a rebuttable presumption of "employee" status whenever the foregoing requirements are not met;
• authorize liquidated damages in the amount of twice unpaid compensation (in effect, treble damages); and
• authorize civil penalties in the amount of $1,100 to $5,000 per violation, depending on willfulness or repetition.

As noted by BNA, Mr. Lurye also higlighted the pendency of the Taxpayer Responsibility, Accountability, and Consistency Act of 2009 (H.R. 3408, S. 2882) which would amend a 1978 safe harbor provision in Section 530 of the Internal Revenue Code that protects employers that misclassify workers. 

This issue is gaining political momentum on both the federal and state levels.  Mr. Lurye's remarks re-emphasize the fact that labor unions are also focusing on the issue.  Employers who rely upon independent contractors or other forms of contingent workforces would be prudent to take the time now to audit those relationships to minimize exposure to misclassification claims.

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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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