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

El Paso Nurses Choose NNOC as Bargaining Agent: Vic Kolenc of the El-Paso Times reports that nurses at Sierra Medical Center in El Paso, TX have voted to select the National Nurses Organizing Committee (NNOC) as their exclusive bargaining representative. The nurses voted Tuesday, with the union winning by about 40 votes (113-74).  A Sierra spokesperson expressed her disappointment with the union's victory, but promised to negotiate in good faith with the newly-minted union.

"Sierra Medical Center believes what's best for employees and management is working together without the involvement of a third party," Garcia said. "It has always been our position that the hospital offers competitive wages and benefits, and management promotes a positive work environment."

A union spokeswoman, however, expressed her excitement with the victory, claiming that El Paso is now a "union town" for nurses.

NYC Accepting Driver Bids Even Though Strike Continues: Phil Corso of the Queens Times-Ledger reports that the New York City Department of Education (DOE) has begun the process of reviewing bids from several bus companies over the more than 1,100 bus routes that went out in late December, even though the city is still dealing with the Amalgamated Transit Union (ATU) school bus drivers' strike, which is now almost a month old.

The city is hoping that the new round of bids would save millions of dollars in the long term because any new bids will not include driver job protections, which has become a major sticking point in negotiations between the city and the ATU. The union has asked the mayor to suspend bidding and put ATU employees back on the job.

“The mayor has the power to put our drivers and matrons back to work,” said Michael Cordiello, president of ATU Local 1181. “All we ask is that he suspend the bids and is willing to discuss ways to reduce costs within the school bus transportation industry, which the union has shown has nothing to do with keeping the most experienced school bus crews on the road.”

Workers Push Back Against Activist Union: Ira Kantor of the Boston Herald reports that workers at Complete Cleaning, Inc. in Lynn, MA have won a settlement after filing a complaint with the National Labor Relations Board against the Services Employees International Union (SEIU), Local 615. The complaint alleged that SEIU officials had attempted to claim a monopoly over Complete Cleaning employees' bargaining rights.

“Massachusetts needs a Right to Work law to make it less difficult for workers to keep predatory union bosses in check,” said Mark Mix, president of the National Right to Work Legal Defense Foundation.

The settlement also requires the SEIU to stop attempting to claim bargaining power until it can affirmatively show that it has the support of a majority of employees at Complete Cleaning.
 

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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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In a departure from long-standing agency policy, NLRB Acting General Counsel issued Memorandum GC 13-2 on January 9, 2013, outlining a modified agency approach that allows front pay in lieu of reinstatement to be included in Board settlements.

Although agreements providing for monetary compensation in exchange for waiver of reinstatement occur routinely among parties in ULP settlements, the agency favors reinstatement as “the preferred means to vindicate statutory rights and restore the status quo after unlawful discrimination.” This pro-reinstatement approach has been evident in agency policies that: (a) refused to allow front pay to be included in Board settlements, requiring instead that parties handle agreements exchanging compensation for reinstatement waivers privately, in separate side arrangements as non-Board agreements and, (b) admonished Regions “not to encourage a waiver or advocate a premium above the make-whole remedy for any purpose whatsoever” during the settlement negotiation process. These policies have reflected the Board’s position that discriminatees need to be protected from being pressured to waive the right to reinstatement.

While reiterating that the agency continues to favor reinstatement as the remedy for unlawful discharge, the AGC acknowledged that, in reality, many discriminatees prefer monetary compensation to reinstatement. In his memo, the AGC stated:

[P]arties and discriminatees are free to negotiate a waiver in return for a monetary amount. In practice, they routinely do so and a significant number of settlements approved by Regions in recent years include payments to discriminatees of greater-than-one-hundred-percent backpay.

Noting that “[a]gency policy should favor Board settlements, not discourage them,” the AGC announced that the Case Handling Manual will be revised to permit front pay in Board settlements. The memorandum also outlines policy revisions that will: (1) require a written waiver in most cases where settlement does not include reinstatement and, (2) clarify the approach the Regions should take when negotiating settlements involving offers of front pay.

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On Tuesday, December 18, 2012, the National Labor Relations Board ruled in Latino Express, Inc., 359 NLRB No. 44 (2012), that employers will now be required to compensate workers for any extra taxes resulting from lump-sum backpay awards. The Board further held that when issuing backpay awards, employers must report the pay to the Social Security Administration in a manner that properly allocates back wages to the appropriate timeframe in which it was, or would have been, earned.

The new remedies stem from the Board’s review of an earlier decision, Latino Express, Inc., 358 NLRB No. 94 (July 2012). Upon finding violations of the Act in that case, the Board severed the two remedial issues of requiring the employer to bear the burden of: (1) tax compensation to discriminatees for additional taxes on backpay awards and, (2) Social Security reporting to properly allocate the backpay. The Board invited briefs from interested parties and after consideration of the materials submitted, the Board adopted both measures in its current opinion.

In the decision, the Board explained how lump-sum awards might disadvantage workers by pushing them into a higher tax bracket. The Board also considered the ways in which improper allocation of lump-sum awards can negatively impact workers with regard to Social Security benefits, including creating the potential for insufficient credits for meeting the qualification threshold, as well as possibly reducing benefits later if a lump-sum award has resulted in a reduction of the payments made on the employee’s behalf. With regard to the reporting requirement, the Board characterized the “burden of filing this report” as “not a heavy one” and explained that “as between the two parties, it is appropriate to place the burden for filing the report on the Respondent.” In its current decision announcing the remedies, the Board stated that:

Because of the Board’s unique role in determining how best to remedy violations of the National Labor Relations Act, it is incumbent on us to periodically revisit and revise the Board’s remedial strategies, drawing on enlightenment gained from its experience.

The recent ruling, which stands to impact all labor cases involving backpay awards, was characterized by the NLRB as a way to “better serve the remedial policies of the National Labor Relations Act by ensuring that discriminates are truly made whole for the discrimination they have suffered.” Unlike a number of case decisions handed down in December, these changes will be applied retroactively and therefore will be included in remedial orders issued in all future and currently pending cases.

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I did this interview yesterday with the always excellent LXBN-TV to sum up the recent activity surrounding the National Labor Relations Board's postponement of its notice-posting 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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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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The National Labor Relations Board unanimously found that a newspaper publisher committed unfair labor practices during a union organizing campaign -- rejecting the employer's novel argument that so doing would violate the First Amendment.  In Ampersand Publishing LLC d/b/a Santa Barbara News-Press, 357 NLRB No. 51 (Aug. 11, 2011), Chairman Wilma Liebman and Member Craig Becker, with Member Brian Hayes concurring on more limited grounds, rejected arguments that the employees’ actions were not protected because they dealt with editorial content rather than wages and benefits, and that the order would interfere with the publisher’s First Amendment right to control the newspaper’s editorial content.

According to the decision, the union organizing campaign began in the summer of 2006 after a number of journalists resigned from the newspaper to protest alleged interference with their reporting of the news.  Before filing a petition at the Board, the employees presented the newspaper with a letter making several demands, first among them:

We respectfully request that you…[r]estore journalism ethics to the Santa Barbara News-Press: implement and maintain a clear separation between the opinion/business side of the paper and the news-gathering side.

The letter also contained demands to recognize the union, to negotiate a contract and to invite the departed employees to return.  In the subsequent election, employees voted overwhelmingly in favor of representation by the Teamsters.

The Board rejected the employer’s preliminary defenses, noting that the employees did, in fact, demand recognition and bargaining regarding wages and hours – but also that the employees’ protest regarding editorial conduct was protected in itself.  The Board explained:

The newsroom employees’ concerted actions were not in protest against a change in the editorial stance of the paper—whether to endorse the Democratic or Republican candidate for mayor, for example. Rather, they were in protest against decisions that limited the autonomy they had previously enjoyed to report the news according to what they believed were professional norms. Restrictions on their autonomy and threats to their professional ethics directly implicated their interests as employees.

Similarly, the Board rejected the employer’s First Amendment argument that the employees had only “invoked the [National Labor Relations] Act as a regulatory means to gain control over the content of the newspaper.”  Noting that editorial content is a non-mandatory subject of bargaining, the Board explained that the employer would have recourse against its employees and their union representative if they insisted to impasse upon proposals which would implicate such.  But the Board declined to issue a decision here based upon “what may come to pass in the future.”

Ultimately, the Board held:

The judge found that the Respondent engaged in an extensive campaign of retaliatory conduct against employees because they exercised their rights to seek union representation and to join together for their mutual aid or protection. Our order remedies that unlawful conduct.

The Board ordered the employer to reinstate and make whole a number of discriminatees.  Chairman Liebman and Member Becker also ordered that a senior management official read, or be present at the reading to the employees of, the complete NLRB notice to be posted.

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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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Late last week, NLRB Acting General Counsel Lafe Solomon issued two Memoranda regarding expanded powers of the Board when it comes to monetary remedies. 

Memorandum GC 11-08 (March 11, 2011) outlines new methods for calculating backpay in Board cases.  First, it explains how Regions are to compute backpay to include interest compounded daily, consistent with the Board's change of direction in Kentucky River Medical Center, 356 NLRB No. 9 (Oct. 22, 2010).  It also instructs Regions to award additional financial offsets to cover the tax consequences of a lump-sum financial settlement, and to reimburse a discriminatee for the costs of any interim job search.  Moreover, it advises Regions to seek language in future remedial orders requiring the employer to advise the Social Security Administration of the allocation of any backpay award to the appropriate timeframes.  Finally, it indicates that the Board will be conducting training this week for Regional staff on these issues.

The other memo, Memorandum GC 11-07 (March 11, 2011), urges the Board to reconsider two 2007 decisions that require discharged employees to mitigate potential damages promptly. 

In Grosvenor Resort, 350 NLRB 1197 (2007), the Board held that a number of discriminatees did not fulfill their duty to mitigate their damages because they delayed their search for new employment by up to eight (8) weeks.  Based upon a review of earlier Board cases regarding mitigation and the circumstances of the case, the Board ruled that anyone in the case who had waited more than two weeks to commence a job search had waited too long.  The backpay awards for any such discriminatee was calculated from the beginning of his or her search.

In St. George Warehouse, 351 NLRB 961 (2007), the Board shifted the burden of production in mitigation cases to the General Counsel to establish that a discriminatee took reasonable steps to seek equivalent jobs in the relevant market. 

The new Memorandum asks the Regional Offices to identify cases that may be proper vehicles for overruling these two cases, thus:

• St. George Warehouse -- Regions are authorize to seek reversal of St. George Warehouse and the changed burden of production in all cases where a discriminatees' [sic] reasonable search for work is being litigated.  In such cases, Regions should object to the shifted burden of production and challenge the St. George Warehouse rule, bt should put forth the reasonable search evidence as required under that decision (consistent with this Guideline Memorandum's discussion of using receipt of unemployment beenfits as prima facie evidence).  In arguing against St. George Warehouse, Regions should use the legal argument set forth [herein] and may consult the Division of Advice for further assistance in litigating this issue.

• Grosvenor Resort -- Regions should determine, as part of their compliance investigation, what is a reasonable period of time for the discriminatee to begin to search for work.  Regions are authorized to seek reversal of Grosvenor Resort in cases in which the Region determines that a delay of more than two weeks is reasonable. 

Employers with cases pending at Regional Offices should take specific note of these Memoranda.  Others should also see them as the latest developments in a few trends -- most notably, the current Board's intent to overturn caselaw from the prior administration; and, to expand the Board's remedial powers.

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On February 11, 2011, the House Committee on Education and the Workforce held a hearing entitled "Emerging Trends at the National Labor Relations Board."  Witnesses at that hearing were highly critical of the recent activity of the Board.  That afternoon, NLRB Chairwoman Wilma Liebman issued a statement declaring that the agency was merely "coming back to life after a long period of dormancy."

Late last week, Chairman Liebman and Acting General Counsel Lafe Solomon submitted separate written statements for inclusion in the hearing record.  Acting GC Solomon's letter focuses on his numerous initiatives announced by GC Memoranda the past few months.

Chairman Liebman's statement takes exception to the testimony of the management attorneys on the panel, and continues her defense of the agency's direction thus:

What are the "emerging trends" at the Board?  I think there are three.

First, greater productivity in decision-making, reflecting the Board's new quorum and with it, the ability to decide cases and avoid deadlock.  Second, greater transparency and public participation in its decision-making -- perhaps at the price of greater controversy, but with a corresponding gain in the fairness and quality of the Board's decision-making process.  Third, a willingness to take carefully considered steps to keep the National Labor Relations Act vital, as exemplified in the Board's unanimous decision to begin awarding compound interest on backpay awards to employees victimized by unfair labor practices -- more than 20 years after the Board was first urged to adopt that remedial change.

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In late 2010 and earlier this month, we observed that the NLRB was getting more aggressive in its enforcement of settlement agreements by including onerous "Default" or "Performance" language in some agreements.  This language generally required the employer to agree that in the event of alleged non-compliance with the settlement, all factual allegations in a re-issued Complaint would be deemed admitted.  

Now it's official. The Acting General Counsel has made this language mandatory. In General Counsel Memorandum No. 11-04 issued last week, Acting GC Lafe Solomon has directed Regional Offices to include the following language in all future settlement agreements:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party/Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

One might expect that insistence on this language in a settlement agreement would make an employer far less willing to settle a case.  By requiring a waiver of the employer's rights to defend itself on the substance of the charges, this language puts an employer in a more precarious position after settling than it is in before.  It significantly raises the stakes in a compliance proceeding.

The Board would argue, however, that is the point -- that a charged party is more likely to abide strictly to the terms of the settlement agreement, and not risk being charged with non-compliance.  Of course, compliance disputes may be generated by anyone: the Board, individual employees, or a union.  This certainly provides an agitator or a union pursuing an aggressive organizing strategy with an additional potent weapon.

The Board asserts that its review of Regions historically using this language at their discretion have had higher rates of success both settling and litigating cases:

five Regions routinely propose[d], and three of those Regions regularly insist[ed] upon, inclusion of default language in all informal settlement agreements. With a settlement goal of 95%, these five Regions achieved settlement rates in FY 2009 of 96.9, 98.3, 95.6, 96.5 and 93 percent, respectively, and in FY 2010 of 100, 96.2, 94.2, 91.6 and 95.1 percent, respectively. These Regions also achieved litigation “win rates” in FY 2009 of 100, 75, 83.3, 90 and 93.3 percent, respectively, compared to a national rate in FY 2009 of 89.9 percent, and achieved litigation “win rates” in FY 2010 of 100, 100, 87.0, 87.5 and 100 percent, respectively, compared to the national rate in FY 2010 of 91.4 percent.

The Board thus continues its trend of strengthening remedies and enforcement options available to it to enforce the National Labor Relations Act.  We should not expect these developments to end anytime soon.

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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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The National Labor Relations Board was busy during the last week of 2010, issuing twelve published decisions and a number of additional unpublished decisions in representation cases.  Interesting decisions handed down last week include:

• Salon/Spa at Boro, Inc., 356 NLRB No. 69 (Dec. 30, 2010):  In this straightforward 8(a)(1) interrogation and discharge case, the Board approved the ALJ's Recommended Order directing electronic posting of the remedial notice via the employer's intranet system.  While the ALJ granted this remedy, sought by the General Counsel, prior to the Board's recent J. Picini Flooring decision, the Board (without Member Hayes' agreement) found it consistent with its current position and modified the Order accordingly.  The evidence found by the ALJ to justify this new remedial approach was that the employer maintained an internal "intercom" system, similar to e-mail, which it used to announce to its hair stylists things like staff meetings.  Expect electronic posting to continue to trend toward the presumed appropriate remedy.

• Sidhal Industries, LLP, 356 NLRB No. 67 (Dec. 30, 2010):  This decision involved another judgment granted pursuant to the more aggressive "performance" language being included by Regional Offices in connection with settlement agreements.  The agreement settling discrimination and refusal to bargain allegations in this case included a lengthy provision indicating that non-compliance with the settlement would result in re-issuance of the complaint, to be deemed admitted by the Board, leaving only the issue of compliance or non-compliance for dispute.  The Board here found non-compliance and, as a result, entered judgment on all the complaint's allegations. 

• New England Confectionary Co., 356 NLRB No. 68 (Dec. 30, 2010):  Chairman Liebman, and Members Becker and Pearce, found a number of 8(a)(1) violations in promises of better benefits made by supervisors to encourage a decertification effort.  The Board dismissed a number of allegations, however, that the employer's H.R. Generalist violated the Act by soliciting petition signatures and promising employees benefits.  The Board found that the H.R. Generalist lacked "apparent authority" to speak for management, as her role was largely administrative and not managerial in nature.

More information regarding these and the Board's other recent decisions is included in the Board's Weekly Summary of Cases.

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

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

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

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

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

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

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

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

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

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

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

(Emphasis supplied).

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

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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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In J.Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), Members Becker and Pearce joined Chairman Liebman in holding that “respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members.”  The decision expands the customary Board remedy of posting paper notices in the workplace, and is a clear sign of this Board’s commitment to adapting NLRB mechanisms and law to evolving technologies in the workplace.

In a September 28, 2010 article in the National Law Journal, I suggested that Chairman Liebman was not content to allow the NLRB to be viewed as the “Rip Van Winkle of administrative agencies.”  Chairman Liebman wrote forcefully in the dissent to the 2007 Register-Guard case:

National labor policy must be responsive to the enormous technological changes that are taking place in our society.

The decision in J.Picini Flooring continues in that vein:

The ubiquity of paper notices and wall mounted bulletin boards, however, has gone the way of the telephone message pad and the interoffice envelope.  While these traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members.  Electronic communications are now the norm in many workplaces….

Accordingly, going forward, the Board will now require remedial notices to be distributed by email if an employer customarily uses email to communicate with its employees, and by other means of electronic communication which are so used by the employer. Questions as to whether some type of electronic communication is necessary will be addressed at the compliance stage.

Member Hayes filed a dissent to the decision, asserting that the Board has transformed “an extraordinary remedy into a routine remedy.” 

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In a unanimous decision issued Friday, the National Labor Relations Board held that henceforth it would order daily compound interest on backpay awards -- "deviating" from its long-standing practice of issuing simple interest in unfair labor practice cases.  The 4-0 decision in Jackson Hospital Corporation, 356 NLRB No. 9 (October 22, 2010) explains:

For nearly 50 years, the Board has ordered interest to be paid on backpay awards under the Act. For more than 20 years, a succession of NLRB General Counsels has urged the Board to order compound, rather than simple, interest. The Board has consistently declined to do so—without ever addressing the merits of the issue, except for a preliminary endorsement of daily compounding in a notice of proposed rulemaking issued in 1992, which was withdrawn in 1998. Over the years, Board decisions have deferred a final ruling on the issue of compounding, denying the General Counsel’s request for that remedy, but always leaving open the possibility of a change in policy. Today, we make that change, after full briefing of the issue in response to our invitation. We adopt a policy under which interest on backpay will be compounded on a daily basis, using the established methods for computing backpay and for determining the applicable rate of interest. As we will explain, the daily compounding of interest is used under other comparable legal regimes (including the Internal Revenue Code, which the Board has followed in other respects related to awards of interest), and it will better serve the remedial policies of the National Labor Relations Act.

Back in May, we indicated that we thought this development was coming, pointing out a footnote in San Juan Teachers Assn., 355 NLRB No. 28 (Apr. 30, 2010), which read:

In his exceptions and supporting brief, the General Counsel seeks compound interest computed on a quarterly basis for any backpay or other monetary award. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Cardi Corp., 353 NLRB No. 97, slip op. at 1 fn. 2 (2009); Rogers Corp., 344 NLRB 504, 504 (2005).

Now, after having solicited and considered amicus briefs on the issue from the National Right to Work Legal Defense Foundation, the S.E.I.U., and the AFL-CIO, the Board has decided to do so.

More resources:

• NLRB press release
• Brief of the General Counsel, June 2010
• Amicus Brief of AFL-CIO, June 2010

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

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Late last week the NLRB decided two additional cases.  In Scheid Electric, 355 NLRB No. 27 (Apr. 29, 2010), the Board found that the employer unlawfully withdrew recognition of the union representative, unilaterally changed terms and conditions of employment and interrogated and constructively discharged a union steward.

The second case contains a far more interesting footnote.  In San Juan Teachers Assn., 355 NLRB No. 28 (Apr. 30, 2010), without much discussion the Board affirmed the Administrative Law Judge’s finding that the employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act by unilaterally reducing the hours of two unit employees.  Regarding the remedy, the Board states in footnote 1:

In his exceptions and supporting brief, the General Counsel seeks compound interest computed on a quarterly basis for any backpay or other monetary award. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Cardi Corp., 353 NLRB No. 97, slip op. at 1 fn. 2 (2009); Rogers Corp., 344 NLRB 504, 504 (2005).

Continue Reading...

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

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

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

Read the entire report here.

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

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

You can read the entire piece here.

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

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

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

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

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

More commentary:

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

 

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

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

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

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

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

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

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

* drastically shorten the time frame for holding union elections;

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

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

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

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

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

Other commentary on the issue:

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

 

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

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

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

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

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

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

 

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

 

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

 

Still, labor advocates remain hopeful.

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

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

Other remarks from the piece:

• Senator Carper:

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

• Senator Harry Reid (D-NV):

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

• Senator Dick Durbin (D-IL):

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

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

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

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

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

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

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

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

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

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

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

 More coverage:

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

 

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

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

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Perhaps providing EFCA's critics a prime example of the type of deception card-check organizing can subject workers to, The Hill reports that American Rights at Work is "using tags on Twitter to con opponents of the legislation into signing a petition supporting it."   According to The Hill:

The misleading campaign first showed up on Saturday, when EFCANow posted to its Twitter account: "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition," followed by a website.

Since Saturday, nearly a dozen entries into the group's Twitter feed mention Gingrich, the general chairman of American Solutions, and Anuzis, who heads American Solutions' anti-EFCA campaign.

Elsewhere, the article notes:

Twitter has become a popular platform for groups on both sides of EFCA — also called card-check — debate. The Service Employees International Union (SEIU), AFL-CIO and Communications Workers of America are all using the site to send brief messages to supporters, while those opposed to the bill are rallying their troops as well.

While not mentioned in The Hill piece, one can follow all the updates featured here on EFCA Report via our Twitter feed. 

A final interesting political tidbit via The Hill, but apparently reported initially via Twitter:

SEIU chief Andy Stern on Sunday used his Twitter account to call Rep. Joe Sestak (D-Pa.) "impressive" and to reveal that he would meet with Sestak on Monday.

Sestak is considering challenging Sen. Arlen Specter (D-Pa.), who bolted the Republican Party last week, in next year's Democratic primary. Though unions have held out hope that the new Democrat will change his mind, Specter has said he will not vote for EFCA. Sestak is an original co-sponsor of the bill.

Of course, Rep. Sestak (D-PA) is also one of the first to have introduced an alternative to EFCA.  On March 5th, with little fanfare or attention, he introduced the National Labor Relations Modernization Act (H.R. 1355).  This law would:

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

So, it would seem both these men have at times supported EFCA, and also recognized the potential for some alternative labor law reform proposals.  It should make for interesting primary season discourse, to say the least.

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Jennifer Rubin asks at Commentary Magazine's blog whether the groups that opposed EFCA are as well prepared to confront a "lite" version of the bill offered as compromise.  Her excellent post suggests these strategic possibilities:

... There are a couple avenues which they haven’t yet explored, in large part because they were able to beat back EFCA by focusing on the prospect of losing the secret ballot and the huge problems (legal and economic ) with mandatory arbitration.

The first is to back bipartisan reform. Enshrine in statute and enforce the Bush era measures combating union corruption and requiring financial disclosure, make proposed fines for unfair labor practices apply to both unions and employers, and ensure that whatever time limits on elections and access to employer premises (or email) which are required for employers also apply to union decertification elections and union premises (or email), respectively. That might either scare off Big Labor or, if not, maintain the traditional balance between labor and management that has been a hallmark of federal labor law for decades.

The second is to go after the premise that any of this is needed at all. EFCA has been a solution in search of a problem, resting on the questionable notion that unions are losing “market share” not because of worldwide trends against unionization or  because  of younger worker’s lack of affinity for unions but because of nefarious actions by employers. This requires some sober discussion and fact-finding hearings, which may not be in the offing in a Democratic-controlled Congress where the hearings are likely to be stacked heavily in favor of pro-union witnesses. Nevertheless, business groups would be wise to start educating lawmakers and the public if they want to burst the myth that the solution to Big Labor’s woes is more federal legislation

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As reported earlier, three major retail outfits -- Starbucks, Costco and Whole Foods -- have formed a coalition, dubbed the "Committee for Level Playing Field," designed to explore an alternative path to labor law reform.  On a conference call earlier today, the group announced its "Principles of Reform," to wit:

(1) Secret Ballot. Guarantee the right of management and unions to require a secret ballot under all circumstances.

(2) Certification and Decertification Treated Equally. Permit management to initiate a decertification campaign through a secret ballot election just as employees and unions are presently able to initiate certification and decertification campaigns.

(3) Date Certain for Elections. Guarantee a fixed time period for the secret-ballot election--i.e., do not permit delays of an established day for a secret ballot to certify or decertify a union.

(4) Equal Access to Employees for Campaign Purposes. Level playing field for unions and management to access employees during non-working hours during the campaign period, e.g., permitting each to make presentations to employees at a neutral location concerning the issue of whether to form a union.

(5) Expedited Enforcement and Stricter Penalties. Expedited enforcement for serious and pervasive violations of law by labor and management and stricter penalties for serious and pervasive violations (e.g., unlawful discharges), including the penalty of mandatory injunctions when appropriate.

(6) Preserve Private Collective Bargaining. No mandatory arbitration that dictates contract terms, but stricter penalties and expedited enforcement for violations of good faith bargaining rules, including an expedited timetable to begin bargaining after union certification.

Both sides of the EFCA debate have reacted in expected fashion.  Rep. George Miller (D-CA) summarily dismissed the effort:

"This proposal is unacceptable. It was written by CEOs for CEOs. It is not a serious attempt at labor law reform because it fails to fundamentally address key problems that currently prevent workers from being able to join together and bargain for a better life...”

AFL-CIO Director of Government Affairs Bill Samuel indicated an unwillingness to take seriously any efforts by management to generate dialogue regarding labor law reform:

"[A] proposal coming from corporations, some of whom have their own history of violating workers' rights, is simply not an alternative that lives up to giving workers back the freedom to form unions."

Similarly, on the other side of the coin, a spokesperson for the Coalition for a Democratic Workplace said:

"EFCA is clearly on life support so to put out an alternative seems premature and naive." 

There should be no mistake: EFCA is simply bad law and bad policy.  Still, some in Washington are clearly beginning to seek "third ways" to build consensus -- and to find compromise capable of breaking a filibuster.  It would seem prudent for employers not to dismiss this group's statement of principles out of hand, but rather to use it to begin a more thoughful discourse on the issue of potential labor law reform.  (Our white paper, published earlier this year, identified many elements likely to be raised in connection with alternatives to EFCA -- some of which indeed appear in the "Committee's" statement.) 

More commentary:

• "EFCA backers not interested in corporate alternative" -- The Hill
• Politico's Ben Smith's blog -- "Committee for a Level Playing Field"
• "Executives Detail Labor Bill Compromise" -- Washington Post
• "Card Check: No Compromise" -- ShopFloor.org

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Today's AP reports that Starbucks, Whole Foods and Costco have announced that they intend to submit alternatives to EFCA for widespread consideration.  The report (via the Minneapolis Star-Tribune) states:

...[T]he companies on Saturday announced an ad hoc committee aimed at pushing through alternatives. Their proposals will seek to maintain management's right to demand a secret ballot election and would leave out binding arbitration.

The three retailers want to toughen penalties for companies that retaliate against workers before union elections, while at the same time stiffen penalties for union violations.

"We believe in and trust our employees, which is neither anti-union nor pro-status quo," said James Sinegal of Costco. He said the group's proposals "will ensure a fair opportunity for workers to make an informed choice, with a secret ballot, whether they want a union or whether they wish to retain non-union status."

Lest anyone presume that these employers are casually throwing these ideas out there, the report continues, noting that "longtime Democratic operative," lawyer Lanny Davis has been retained by the retailers to help promote their efforts, and: 

Davis said he had discussed the three major retailers' broad principles with the staffs of almost two dozen Democratic and Republican senators. He said most were "positive about our third-way approach."

"I'm proud to call myself a pro-labor liberal Democrat who believes that reforms are needed to provide a level playing field for both labor and management, but not at the expense of a guaranteed option for a secret ballot by both workers and management and certainly not at the expense of preserving the historic process of private, voluntary collective bargaining," Davis said.

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The text of EFCA 2009 as introduced by Rep. George Miller (D-CA) is identical to the version of the bill which failed to pass in 2007 as H.R. 800.  The text of the bill is available here.

And here is the link to the MLA White Paper which reviews the bill's various provisions, includes a critical analysis, outlines its prospects in 2009, and identifies some potential alternative elements of labor law reform.

Update (3/10; 9:00 p.m.):  We've attached the text of the National Labor Relations Act with EFCA's proposed amendments in context, available here.

Update (3/11; 10:00 a.m.):  The bill number in the House is H.R. 1409.

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Last week, we reported on numerous efforts underway to create state-level obstacles to federal card-check legislation.  On the other side of the issue, yesterday's Pacific Business News reports that a Hawaiian Senate Committee has approved a state version of EFCA:

The controversial union card-check measure, which would allow Hawaii labor unions to more easily organize workers by having them sign authorization cards, is gaining ground having cleared its initial committee hearings in the state Senate.

The Senate Committee on Judiciary and Government Operations on Thursday passed Senate Bill 1621, which essentially removes the use of traditional secret-ballot elections by allowing employees to sign cards indicating they’d like to organize under a labor union. If a majority of a company’s workers sign the cards, the union is automatically recognized and free to bargain with management.

The measure also mandates binding arbitration in collective bargaining and removes private-property rights for business owners if the unions want to picket on sidewalks and near entry ways of their establishments. It also establishes legal immunity for unions in actions relating to collective bargaining.

An initial read of the bill indicates that the Hawaiian EFCA is identical in some respects to the federal bill, but includes more drastic measures as well.  A similar bill passed the Hawaiian legislature last year, but was vetoed by Gov. Linda Lingle (R).

It should be interesting to see whether additional states -- similarly viewed as union-friendly -- introduce or pass similar legislation during the next few months.  It may be that long before EFCA is re-introduced in Congress, we have seen numerous related debates play out regarding state opposition measures, state mini-EFCA's and the Secret Ballot Protection Act (H.R. 1176, S. 478).

More information:

• Hawaii Hotel & Lodging Association's Testimony on House Version of Card-Check Bill
• Hawaii Senate Standing Committee Report on SB 1621

 

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