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

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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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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MLA attorney and EFCA Report blogger Richard Hankins is quoted in today's Financial Times on EFCA.  Lately, pro-EFCA forces have taken to accuse critics of "lying" about the EFCA's provisions, claiming that it does not eliminate the secret ballot, but rather allows employees to decide whether they want to organize via secret-ballot election or via card-check.  Regarding this sophistry:

Employers say the secret ballot is vital to stop union organisers pressuring workers to sign up. "Workers won't decide. Union organisers will decide," says Richard Hankins, a lawyer at McKenna Long & Aldridge, who represents businesses on labour issues. "That does concern a lot of people."

Another interesting passage from the piece reflects a likely reality not enough employers are currently preparing for:

If card check fails, there is likely to be a day of reckoning for Democrats whose support wavered. The price of continued union backing is likely to be some sort of compromise measure as well as the formation of a more liberal National Labor Relations Board and pro-union executive orders from Mr Obama, which would not have to navigate a doubtful Senate.

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