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

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

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

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

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

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

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

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

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

More coverage:

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

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

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

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

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

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

Cross-posted at LaborRelationsToday

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

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

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

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

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

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

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

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

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

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

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

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

Cross-Posted at LaborRelationsToday.com

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

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

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

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

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

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

(Hat tip:  ShopFloor.org)

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

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

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

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

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

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

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

 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More commentary:

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

 

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

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

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

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

(h/t: WorkforceFrdm's Twitter feed)

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

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

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

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

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

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

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

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

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

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

Specifically about the impact on EFCA:

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

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

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

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

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

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

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

FireDogLake questions the strategy:

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

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

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

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

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

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

 

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

 

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

 

Still, labor advocates remain hopeful.

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

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

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

Mr. Stern seemed less than optimistic, however:

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

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

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

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

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Columnist Brian A. Howey published a full-length interview with Senator Evan Bayh (D-IN) at his Howey Politics Indiana (HPI) site.  Months ago, we noted Senator Bayh's formation of the "Practicality Caucus" and speculated that groups of moderates would likely seek to change the debate over EFCA.  It seems that remains a strong possibility:

HPI: Where are you on card check? I noticed all the labor guys filing out of here as I arrived and I see you have all your limbs still attached.

Bayh: I’m for reform of the labor law system. I’ve said that repeatedly. I think there are problems with the election process getting strung out months and months and months. Some of the penalties for either side committing abusive conduct are either meaningless because they’re too small or they get strung out for years and it doesn’t have an impact. And when you do have successful elections, sometimes the negotiations go on for years and the results of the elections are frustrated in that. At the same time, I think preserving the secret ballot is a good thing. The hardest issues are what do you do once there’s been a successful election and there’s just an impasse at negotiations? I don’t think we’re going to have binding arbitration. But is the mechanism short of that? Is it some sort of last best offer? Is there some sort of finding of bad faith trigger? Some sort of action for mediation? I don’t know. I’m not on the committee that handles that, either, so I am an observer. I’m hoping we can reach a sensible compromise. Many in the business community this summer felt this is going to go off on an irrational way. I’ve heard their concerns. But many in the business community say, “Look, if you can preserve the secret ballot, have reasonably prompt elections, meaningful penalties for those few bad actors out there, then there is some incentive for people to bargain in good faith.” Many in the business community would support that kind of thing. Many on the labor side would say that’s not everything they want, but it’s a step forward. So I’m hopeful we’ll end up in that place. Only time will tell. I told the labor guys this and this is above my pay grade, but I don’t think we’re even going to vote on it this year.

Hat tip: @WorkforceFrdm

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

Other remarks from the piece:

• Senator Carper:

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

• Senator Harry Reid (D-NV):

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

• Senator Dick Durbin (D-IL):

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

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

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

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

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

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

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

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

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

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

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

 More coverage:

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

 

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

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

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

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

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

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

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

More on these events:

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

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

From a talk with AFL-CIO President John Sweeney:

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

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

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

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

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

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

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

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

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

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

Mr. Sweeney voiced optimism that the bill would pass.

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

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

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

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

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

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

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

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

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

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

Other notable remarks by Trumka included: 

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

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

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

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

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

Other points which the Senator addressed a little more directly:

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

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

 

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

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

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

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

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

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

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

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

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

And, echoing an earlier blog post here:

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

Finally, regarding the ultimate fate of the bill:

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

Is that a sign that this is in trouble?

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

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

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

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

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

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

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

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

POWERS: Charles will join a union.

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

BAIER: The Employee Free Choice Act lives, perhaps?

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

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

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

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

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

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

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

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

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Perhaps getting a better read on political reality than many of their colleagues in the labor movement, SEIU President Andy Stern and Change To Win Chair Anna Burger told the WaPo's editorial board that labor may need to look for reform opportunities which do not include card-check recognition. A few of the potential elements mentioned by Mr. Stern were covered in MLA's white paper "The Employee Free Choice Act in the 111th Congress." From WaPo's 44 blog:

Speaking to The Post's editorial board, Stern noted that there are ways to try to level the playing field in union elections without giving workers a way around the secret ballot requirement, such as shortening the window before elections are held -- thus giving employers less time to pressure workers -- and stiffening penalties for employer violations.

"We are on the hunt for a solution," he said. "No matter what you do, you have to change the election process. Whether it's majority sign up or not, workers have to have a choice about having an election. The bill has to address ... fast elections, eliminating employer behavior and what happens if there are employer violations. Regardless, that needs to be done."

Mr. Stern, who is widely regarded as one of the most influential people in the labor movement, seems to recognize President Obama's lack of enthusiasm for advancing the legislative battle over EFCA at this point in time. Yet:

...he believes that unions must get behind some other substantive reform, instead of waiting until 2011 in hopes of a bigger Democratic majority after the next election. "We need to get something that's significant done," he said.

More:

• "Card Check: Labor Leaders Consider EFCA Compromise" -- ShopFloor.org

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

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

 

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This weekend we asked:

Now that it seems we're losing more than a half a million jobs a month, one has to wonder whether EFCA's proponents could possibly be serious about re-introducing the bill this coming week.

The answer via Reuters:

A bill making it easier for U.S. workers to unionize will be introduced on Tuesday in the House of Representatives, escalating a battle between congressional Democrats and corporate America.

The bill would let employees form a union if a majority of them in a workplace sign authorization cards.

That would change the present practice in which workers usually vote in elections on unionizing, although the bill would leave elections as an option for employees to choose.

The measure will be filed in the House by California Democratic Rep. George Miller, chairman of the House labor committee, said spokeswoman Rachel Racusen.

ShopFloor.org notes the puffery of a supremely confident "unnamed Democratic official" who told Politico:

“The fact that the bill is being introduced so early in the session is an indication of it being a priority and of confidence in the vote count..."

Of course, EFCA was introduced over a month earlier in the 110th Congress, on February 5, 2007, and failed to pass.  As for the "confidence in the vote count," we've repeatedly noted the obstacle EFCA's sponsors face regarding cloture in the Senate.  Any one of a number of things could preserve a filibuster against the bill:  the ongoing dispute over the Al Franken-Norm Coleman seat in Minnesota; Sen. Arlen Specter's (R-PA) vote; the emergence of reluctant moderate Democrats like Sen. Lincoln (D-AR) or Sen. Landrieu (D-LA) among others, etc.

What may be more interesting to watch will be the "confidence in the vote count" in the House.  Last time around, in 2007, EFCA had 233 co-sponsors.  In November 2008, the Democrats picked up an additional 21 seats, for a total of 257 votes.  Will EFCA's supporters surpass the previous level of majority sponsorship this time?

Apparently, we'll see tomorrow.  

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Recently we shared economists' opinions on both sides of the EFCA question, featuring a piece about the full-page ad taken out by EPI in favor of the measure and another regarding former DOL official Mark Wilson's criticism of EPI's alarmist view of the middle class.  Finally, via Fred Barnes, we noted a study by President Obama's chief economic adviser Lawrence Summers of the relationship of union density to state unemployment during the 70's and 80's.

Now, add another voice to the column of doubters.  Dr. Anne Layne-Farrar of LECG has issued a report entitled "An Empirical Assessment of the Employee Free Choice Act:  The Economic Implications."  Her findings?  In sum:

[M]y quantitative analysis indicates that passing EFCA would likely increase the US unemployment rate and decrease US job creation substantially. The precise effect on unemployment will depend on the degree to which EFCA increases union density, but for every 3 percentage points gained in union membership through card checks and mandatory arbitration, the following year's unemployment rate is predicted to increase by 1 percentage point and job creation is predicted to fall by around 1.5 million jobs. Thus, if EFCA passed today and resulted in an increase in unionization from the current rate of about 12% to 15%, then unionized workers would increase from 15.5 to 19.6 million while unemployment a year from now would rise by 1.5 million, to 10.4 million. If EFCA were to increase the percentage of private sector union membership by between 5 and 10 percentage points, as some have suggested, my analysis indicates that unemployment would increase by 2.3 to 5.4 million in the following year and the unemployment rate would increase by 1.5 to 3.5 percentage points in the following year.  

The Heritage Foundation has issued a similar forecast, "Heritage Jobs Report: February Employment Losses Would Be Worse With Card Check."

Friday the Labor Department released numbers indicating the loss of another 651,000 jobs last month, and a current unemployment rate of 8.1%.   Back in January, President Obama spoke to the Washington Post about EFCA:

And he seemed in no hurry to have Congress bring it up. "If we're losing half a million jobs a month, then there are no jobs to unionize, so my focus first is on those key economic priority items," Mr. Obama said, declining to state whether he wanted to see the issue debated during his first year in office.

Now that it seems we're losing more than a half a million jobs a month, one has to wonder whether EFCA's proponents could possibly be serious about re-introducing the bill this coming week.

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In yesterday's Huffington Post, Sam Stein noted that much attention has been focused on whether 59 Democratic Caucus members can find one Republican to cross the aisle on a cloture vote when EFCA is re-introduced.  Now, questions are emerging further about the possible lack of support forthcoming from fellow Democrats.  The piece quotes some anonymous, vaguely described "senior official involved in getting EFCA passed" thus:

"There are no guarantees that this thing can get past cloture," said the official. And it's not because of Republican opposition, he added. "You've got Pryor and Lincoln who might not support it. There is Baucus, Landrieu, and even Bayh. And then there is Nelson of Nebraska."

We've previously noted the lack of enthusiasm expressed by Sens. Pryor and Lincoln for the bill.  It is entirely plausible that now that it is no longer a litmus test for electoral support -- but rather an ill-conceived bill with a numerical possibility of passing into law -- many Senators and Representatives will give more serious thought to its policy flaws and practical implications.  If the "senior official" is correct in his or her concerns, it would be a welcome development indeed.

More coverage:

• "EFCA -- Strongarm Majority Leader Reid?" -- Jottings by an Employer's Lawyer
• "Card Check: In the Senate, in the House, in the Senate" -- ShopFloor.org
• "Et tu, Baucus?" -- kausfiles
• "They'd Rather Not" -- Commentary magazine

 

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As we reported yesterday, Rep. John Kilne (R-MN) and Sen. Jim DeMint (R-SC) introduced the Secret Ballot Protection Act in the House and Senate.  The text of the House version, H.R. 1176, is now available at GovTrack.us and Thomas.gov.  The introduction to the bill reads:

Congress finds that--

 

(1) the right of employees under the National Labor Relations Act to choose whether to be represented by a labor organization by way of secret ballot election conducted by the National Labor Relations Board is among the most important protections afforded under Federal labor law;

 

(2) the right of employees to choose by secret ballot is the only method that ensures a choice free of coercion, intimidation, irregularity, or illegality; and

 

(3) the recognition of a labor organization by using a private agreement, rather than a secret ballot election overseen by the National Labor Relations Board, threatens the freedom of employees to choose whether to be represented by a labor organization, and severely limits the ability of the National Labor Relations Board to ensure the protection of workers.

The bill further amends the National Labor Relations Act to make it an Unfair Labor Practice (ULP):

...to cause or attempt to cause an employer to recognize or bargain collectively with a representative of 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.

More coverage:

• Statement of Rep. John Boehner (R-OH)
• "Fight Over Union Organizing Legislation Heats Up a Bit" -- WSJ.com Washington Wire 
• "Fighting the Card Check Bill" -- Human Events Online
• "GOP Introduces Bill Mandating Secret Ballot Union Elections" -- Workforce Management
• "Card Check: 'Who's Really Lying?'" -- ShopFloor.org
• "Beware of the Big Lie Bill" -- AFL-CIO blog

 

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Today’s rally in support of the Employee Free Choice Act came and went without the bill’s re-introduction as some speculated might happen. 

By most accounts, a few hundred union leaders and supporters joined a few Senators and Congressmen at the Capitol for the rally. The AFL-CIO reported that “thousands” turned out to hear speeches by the legislators present and some employees who spoke of their experiences during union organizing drives.

One of the professed purposes of today’s event was to highlight the delivery of a million or so signatures in support of EFCA to Congress. The DC Examiner’s Bret Jacobson was not impressed:

Consider the larger picture. One million would represent only about one-sixteenth of the unions’ current total membership. Should Congress overhaul an entire labor legal system and remove workplace rights, when only one out of every 16 union members can be bothered to send in propaganda that labor officials have made their highest priority?

As for when we might see the re-introduction of the bill in the 111^th Congress?

The American Prospect’s “Tapped” blog reported this afternoon:

Politically, it looks like both the House and Senate versions of the EFCA bill, which will not have substantially changed since the last attempt to pass it in 2007, will be introduced in the coming weeks, according to Senator Tom Harkin, who has been tasked by Senate Health Education and Labor Committee Chair Ted Kennedy with managing the bill, and Representative George Miller, the lead House sponsor. Walking to a Senate Democratic lunch with President Barack Obama, Harkin suggested the delay on introducing the legislation was related to Al Franken's continuing legal battle over Minnesota's senate election. The senator also expects the nomination of Hilda Solis for Secretary of Labor will clear the Senate before the Easter recess.

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From the Washington Examiner:

Thousands of workers from across the nation will gather on Capitol Hill today to hold a massive petition delivery event urging passage of the Employee Free Choice Act. Kicking off the delivery of 1.5 million signatures in support of the legislation to members of Congress; activists from the nation's unions and progressive organizations will join workers to showcase the broad public support for the bill.

Workers will tell their personal stories about why the Employee Free Choice Act is important to them, joined by two of the bill's key leaders Senator Tom Harkin (D-IA) and Representative George Miller (CA-7). United Steelworkers' International President Leo Gerard will emcee the event, which will also feature Sierra Club President Allison Chin and others. Afterward, workers will personally deliver the signatures to their members of Congress on behalf of working families in their state, encouraging them to support the bill.

This kick-off event will be followed by an ongoing series of events in cities and towns across the country to highlight the groundswell of support for the Employee Free Choice Act as a key piece of creating an economy that works for everyone again.

 

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Over at its ShopFloor.org blog, the National Association of Manufacturers (NAM) speculates that something may be afoot regarding the introduction of EFCA. It was February 5, 2007, that EFCA’s 223 co-sponsors in the 110^th Congress introduced the bill in the House. 

Beyond the pending anniversary, and the recent American Rights at Work ad launch, NAM notes that ARW may be planning a rally in Washington D.C. on Wednesday. 

But most curious is that NAM has reprinted an e-mail sent by EFCA’s chief sponsor, and House Education and Labor Committee Chair Rep. George Miller (D-CA) setting close of business Tuesday, February 3 as a deadline to be an “original co-sponsor” of the bill.

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Organized labor advocacy group, American Rights at Work, released a new TV ad, “The Real Secret,” this weekend. Heavy on the fear-mongering, the ad hammers on the more recent union talking point: that EFCA does not “eliminate” the secret-ballot.

The ad’s script:

“The Real Secret” TV: 30

VO: Corporate greed. It’s caused a meltdown of our economy. Just look at the news … or your retirement account.

Now, greedy CEOs want to prevent workers from joining unions to level the playing field. Their new scheme to keep wages low? Spreading lies about the Employee Free Choice Act.

The truth is the Employee Free Choice Act absolutely protects workers’ right to choose a secret ballot election. But the choice would be the workers. Not their bosses.

That’s the secret Big Business doesn’t want you to know.

On Screen Disclaimer: Paid for by American Rights at Work

The emergence of this approach would seem an acknowledgment that EFCA’s proponents have conceded losing the secret-ballot issue. It’s also a silly argument intended to mislead those in the general public who might not have a thorough understanding of how the National Labor Relations Board’s RC representation process works.

No, the EFCA does not eliminate the secret-ballot procedure language from the NLRA. It only totally eliminates the secret ballot for all workers when a union collects and submits cards from at least 50 percent of a workforce to the NLRB. Arguably a group of employees could still file for an election when 30 to 49 percent of the workforce has signed cards -- but they won't. It will never actually happen -- in part, because the union organizers control the cards, not the employees. What's more, right now, a union needs cards from only 30 percent of the workers to get an election scheduled, and organizers still rarely file until they have cards from 65-75 percent of the proposed unit. This is because unions understand that the supposed support indicated by signed authorization cards is artificially exaggerated. Once the employees receive balanced information from a variety of sources, and have the opportunity to vote in private, the union usually loses support -- and the unions know it.

More commentary on this issue:

• Justin Wilson's blog post "The 30-50 Myth" at the Center for Union Facts' blog
• "Employee Free Choice Act Effectively Eliminates Secret Ballot Organizing Elections" by James Sherk, Heritage Foundation

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