Unions & Labor Law Reform Blog : Unions Lawyer & Attorney : Jackson Lewis Law Firm : Employee Free Choice Act, Collective Bargaining

The National Labor Relations Board (NLRB) announced on June 20, 2010, that Lafe Solomon was tapped to serve as the NLRB’s Acting General Counsel.  The General Counsel, as “gatekeeper” of cases at the NLRB, is responsible for the investigation and prosecution of unfair labor practice cases. 

Mr. Solomon began his career with the NLRB 38 years ago as a field examiner in the Seattle office.  Most recently, Mr. Solomon served as director of the NLRB’s Office of Representation Appeals.

Mr. Solomon replaces Ronald Meisburg as outgoing General Counsel.  Mr. Meisburg, whose term as General Counsel did not expire until August, resigned his position effective June 20, which prompted President Barack Obama to appoint Mr. Solomon to the post.

As always, we will continue to follow this story.  Check back for updates.

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EFCA’s death took place last week in Arkansas. Exactly 10,407 voters killed it — the margin of victory incumbent Blanche Lincoln gained over union-backed Bill Halter in Arkansas’s Democratic primary for the U.S. Senate.

Lincoln early on expressed serious concerns over EFCA. Labor decided to defeat her (to make an example of her) by spending $10 million in three months to deny her a run in November against a Republican with a 20 point advantage in the polls.

The SEIU and AFSCME, in particular, wanted to warn their political “allies” that having paid the piper, they expected to call the tune. Any politician who accepted union support would suffer Labor’s wrath if he or she didn’t dance to it.  Instead, Senator Lincoln, with the support of Presidents Bill Clinton and Barack Obama, showed other EFCA opponents, like Senator Dianne Feinstein (D-CA), that Labor can be beat.

But Lincoln’s victory is still a cautionary tale.  Labor has clearly demonstrated that any position an elected official takes with which it disagrees will be paid for at a high price. Not only did Senator Lincoln have to endure a bruising and costly primary fight, but she will be denied Labor’s support in November. If the Republican candidate defeats an incumbent, moderate Democrat in Arkansas, Labor will take “credit” for her ultimate demise. The message: Labor may lose a fight in order to make sure the politician loses the war. What politician likes those odds?

Consider, too, that the Administration must now make nice to Labor after its “10 million fight down the toilet” remark. Détente began on June 10, according to the Huffington Post, over coffee, soda, and water at the weekly White House/AFL-CIO meeting. The Administration might seek to follow up on this overture by lending support to passage of the First Responder bill, from which the SEIU and AFSCME would surely benefit in the form of new members (read: new dues). If you are not familiar with the bill, you should be, especially if you are concerned with the runaway costs of public sector union contracts.

In the private sector, there are Craig Becker and the Labor Board. Few noticed that last week the Board issued a notice asking for input on how to conduct electronic or Internet-based voting. The National Mediation Board has employed these alternate processes since 2007 under the Railway Labor Act. If the NLRB goes down a similar path, the actual timeframe for an election could be about 14 days, instead of 42.

How does that happen? Look at the RLA procedures. About two weeks into the election process, the NMB notifies all voters how to vote — effective immediately! Even though the “polls” do not close for another few weeks, the employer must assume an employee may vote at once, effectively shattering the election campaign cycle. Don’t think for a minute the NLRB does not appreciate that.

So EFCA might be dead, but if the recipients of Labor’s largesse want its continued political support, a way will be found very soon — perhaps over coffee, water, and soda at the White House. A truly “transparent” Administration would let us in on the meetings. I would not bet 10 million bucks on it happening, though.

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“If it ain’t broke, don’t fix it,” says the old adage.  So why is the National Labor Relations Board thinking of “tampering” with its time-tested booth-and-ballot box voting procedure for holding union representation elections?  No one is complaining about the current method.  Unions certainly should not; they have been winning a sizable and growing share of these contests.  Nevertheless, and despite the President’s professed vexation with things technological, his recently installed pro-labor NLRB wants to go hi-tech in conducting these elections, or at least use mail or telephone balloting routinely. 

The NLRB has published a Request for Information to explore possible sources for “secure electronic voting services” and is soliciting information about “proven solution[s]” for other techniques, as well.  Here is the text:

The NLRB's requirements are for the acquisition of electronic voting services to support conducting secret-ballot elections to determine representation issues. Specifically, the Agency requires a proven solution that supports mail, telephone, web-based and/or on-site electronic voting; that includes the necessary safeguards to ensure the accuracy, secrecy, observability, transparency, integrity, accountability, and auditability of Agency-conducted elections; and that has demonstrated experience in protecting similar type elections from both deliberate misconduct and simple error. With respect to electronic voting capabilities, the Agency specifically requests information, to the extent available, relating to what safeguards, if any, could be implemented to ensure that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion. The Agency also requests, to the extent available, information relating to experience regarding the level of participation achieved through remote electronic voting technology (vs. traditional on-site elections, whether manual or electronic).

The combination of the NLRB's continuing technological modernization, the numerous locations and size of offices, and varying end-user competency levels may add complexity to the electronic voting services solution.

Obviously, the Board recognizes that these procedures are far more vulnerable to misconduct and are more likely to subject employees to interference, undue intimidation and coercion.  From working with computers, moreover, we know that any safeguards likely will be effective only until the next determined malefactor thinks up ways of getting around them. 

So why bother?  Unions are still smarting over their failure to push through EFCA (Employee Free Choice Act).  They are looking for ways to achieve administratively what they could not in legislation.  Perhaps unions see in new NLRB voting procedures an opportunity to further leverage their power.  They can target individual, dispersed workers more effectively and diminish the influence of employers in opposing organization.   

The Board is fast-tracking this RFI.  It wants responses by June 29. 

The system may not be broken, but with a union-friendly administrative agency in place, we have not heard the last of an idea that may benefit organized labor. 

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On June 15, 2010, SEIU Healthcare Florida members will have the chance to vote in a secret ballot election to determine whether to merge with 1199SEIU United Healthcare Workers East in what the unions are calling a “Partnership for Power.” 

With more than 350,000 members, 1199SEIU is already the largest healthcare workers’ local in the country. 

According to the proposed merger agreement, if ratified, the merger is slated to be effective July 1, 2010. Some of the key provisions include:

1.      The current SEIU Healthcare Florida President, Monica Russo, for the most part, will remain in charge of the Florida Region. She will become the new Florida Region Executive Vice President for 1199SEIU and will report directly to the President of 1199SEIU in New York City, George Gresham. Russo will also keep her post as an SEIU International Vice President.

2.      1199SEIU promised to pump resources into Florida to help organize healthcare workers and negotiate first contracts for them.  This means 1199SEIU will send money and talent to conduct corporate organizing and contract campaigns. 

3.      1199SEIU’s Director of Organizing and Russo will jointly designate targets, campaign strategy and resource allocation.

4.      While 1199SEIU will pump money into Florida, it also will be increasing dues for its members employed in acute care hospitals.

5.      1199SEIU promises to mobilize its retirees living in Florida to help the local in organizing, representation and political campaigns.

6.      The agreement specifically acknowledges the continuing collaboration pact between SEIU and the National Nurse Organizing Committee (the outgrowth of the California Nurses Association and currently part of National Nurses United, the RN “super union”). 

7.      1199SEIU agreed to fund “significant struggles with employers” within Florida to achieve certain strategic objectives in collective bargaining negotiations, including:

a.       union training fund commitments;

b.      improvements in health and welfare; and

c.       improvements in pension benefits.

8.      1199SEIU is committed to give the Florida Region access to its communications, legal research and other support operations. Upon ratification of the agreement, the Florida Region also will have access to the International’s Strike Fund.

While the full effect of this merger will not be known for some time, the unions are selling it as a positive step in consolidating SEIU’s healthcare presence from Maine to Miami. The union’s literature notes that after the Massachusetts local merged with 1199SEIU, its membership tripled. One thing is clear, healthcare providers in Florida should be prepared for a significant uptick in union organizing and increased demands at the bargaining table. Non-union hospitals, nursing homes and other healthcare providers should undertake a corporate-campaign and union-organizing vulnerability assessment to identify issues that may be exploited by union organizers in a campaign. Employers also should provide management education on employer rights and responsibilities and employee education on pro-employee philosophy, wages, benefits, recognition and problem solving policies.

For more information please contact Roger Gilson or Thomas Smith

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Senators Orrin Hatch and Tom Harkin, members of the Senate Health, Education, Labor and Pensions Committee, spoke at the 20^th Jackson Lewis Corporate Counsel Conference in Washington, D.C. on May 13. Senator Harkin said at an IAM conference held a few days before that EFCA was his top priority.  We asked Senator Hatch during our breakfast for 225 in-house counsels if Senator Harkin had the votes to make his priority a reality. Senator Hatch’s response was “no.”

Later, over lunch, Senator Harkin agreed with Senator Hatch that the votes for EFCA are simply not there. His candid admission clearly disputes Richard Trumka’s prediction that EFCA would pass if attached to some other piece of legislation.

Nonetheless, as we pointed out at a labor relations break-out session, labor law reform comes in many shapes and sizes. Executive orders, restrictive state laws, provisions of government contracts, new interpretations of well-established rules and regulations, reversal of precedent and potential rulemaking all make for a challenging environment.

Senator Hatch reminded us that unions spent $1 billion in the last election cycle. What does a billion dollars buy? As much as labor can get.

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According to Politico, it appears that Andy Stern’s selected successor for SEIU President, Anna Burger, may lose to rival Mary Kay Henry. It is interesting that a union that often speaks about “democracy” and “voice” is engaged in quiet deals to “elect” its new leader based upon the “voice of membership.”

Ironically, Mr. Stern, the great champion of Employee Free Choice, is not offering free choice to his membership by allowing them to vote for their next leader. Is he really so afraid of the secret ballot election? If so, perhaps the union should ask members to sign cards for one candidate or the other, followed by a “card check” to determine the winner?   Instead, SEIU members will have no voice at all in selecting their next president.

We will have to wait for the decision of the union's executive board (we guess by secret ballot and not signed cards) to see who wins. Nonetheless, many of the points raised in Ms. Burger’s letter to the Executive Board (http://www.politico.com/static/PPM136_100421_anna_burger.html) merit discussion.

1.      Ms. Burger says the SEIU is “beacon of hope” for workers “…around the world.” Unions are going global to match their target employers.  This is why Jackson Lewis is expanding our international reach as mentioned in the webcast (https://lrp.webex.com/lrp/lsr.php?AT=pb&SP=EC&rID=39936417&rKey=b0a9727c11580eb1).

2.      Her admission of issues with HERE and NUHW is a prelude to settlements. And watch for the AFL-CIO and CTW to re-unite. Indeed, Ms. Henry may even accelerate the process.

3.      “We have the best President of our generation” for “the next 7 years” is a call for even more political activity by the SEIU. The union’s two million members need to keep their wallets open for ongoing political contributions. We wonder if Ms. Henry disagrees.

4.      Ms. Burger’s urging to “…use health care reforms…” for SEIU growth is a clear admission that the union wanted an expansion of health care to grow its membership. The closer we get to a national health market, the closer we get to the SEIU being the controlling national union impacting all Americans each day. Ms. Henry will be even more aggressive with organizing as the union needs money desperately.

5.      Ms. Burger wants “to push…the labor-friendly majority on the NLRB” to make it “easier to organize.” No surprise. This is what we said would happen. The stars are in alignment.

6.      Her reference to the rights of “immigrants” means immigration reform is alive and well and the SEIU wants those 12 million people as members.

7.      Ms. Burger wants a larger slice of the public sector workers. Since the SEIU has negotiated contracts which are literally bankrupting the public sector, this is a frightening thought. The SEIU’s political skill to support or oppose politicians who support or oppose the union is very effective.

The speculation that Ms. Burger believes more in the “political role” of the union than Ms. Henry is really only a matter of degree. Similarly, as far as organizing is concerned, in light of its financial condition, the union must get more members no matter who leads it.

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The Chairman’s statement could signal slower change than forecast – but don’t bank on it

For the first time in more than two years, the Board has clear quorum.  The question now turns to how the agency will exercise its authority. This is an issue of no small concern.  For an agency that is supposed to bring order and stability to labor-management relations, change and uncertainty are unsettling.  This is all the more true when its Chairman expresses seemingly conflicting intentions.

We have heard that the NLRB, now firmly in Democratic hands, would kick over the traces of the “Bush Board.”  In short order it would reverse precedents that were deemed inimical to organized labor and employees, some may say.  Chairman Wilma Liebman, herself, has signaled her eagerness to make changes.  Yet a close examination of her views suggests changes in Board law could take place more deliberately - maybe.  That two of the four members, Craig Becker and Mark Pearce, will owe their positions to Presidential fiat, rather than Senate confirmation, matters more to the Chairman, she professes, than many would allow. 

This is not the first time Ms. Liebman has been on a Board of recess appointees.  It happened in 2002.  Speaking to both union- and management-side labor lawyers about her experience at the American Bar Association meeting of the Section of Labor Law (August 13, 2003), then-Member Liebman was quoted as saying, “Recess appointees should be hesitant to overrule precedent because it could be seen as a rush to judgment and undermine public confidence. In contrast, a decision to overrule precedent by a fully confirmed board can be perceived as having more credibility.”  She continued, “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.” 

At least that is what she said when Republicans controlled the Board. We will be watching keenly whether Chairman Liebman will keep the Board from jumping the tracks of established policy now that Democrats are in charge.  Regrettably, few, if any, practitioners (management or labor) believe she will remain true to her word on this.  Odds are Liebman and Becker will work at peak throttle to reverse major Board decisions in order to fulfill their vision of Labor Law Reform, while bypassing Congress.  This “EFCA-lite” likely would include:

• Rapid-fire elections
• Diminished ability for employees to receive information from management and make an informed decision
• Much earlier union access to employees names and addresses
• Access to employer premises for union organizers
• Restrictions on employers’  ability to communicate effectively with their own employees
• Union access to employer-maintained electronic technology
• Doubt created over the supervisory status of first line managers

Should the new “recess Board” fail to stay within the limited role the Chairman has espoused, an explanation certainly will be expected from her.  It may be called for sooner rather than later.   

Martin Payson also contributed to this article.

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This article was written by Roger P. Gilson, a partner in our Stamford, Connecticut office.

Secretary of Labor Hilda Solis’s comments at the AFL-CIO annual meeting last week confirmed speculation that, with or without the resolution of health care legislation, President Obama will announce his recess appointment of Craig Becker to the National Labor Relations Board when Congress breaks for the Easter recess. While this effectively could preclude Becker from serving a normal five-year term, he would serve for about a year-and-a-half, enough time to have a profound impact on labor relations in this country. 

In addition, some say the President also will appoint to the Labor Board union-lawyer Mark Pearce, who was previously nominated, and an as-yet-unnamed person (this would be in place of Bryan Hayes, the previous nominee for the currently vacant “Republican seat” on the Board). Some believe a recess appointment of Becker would be something the President can deliver to his labor supporters in advance of the upcoming mid-term elections.  

Filling the Board’s vacancies with recess appointments now would give the Board time to achieve significant labor law reform through rulemaking without EFCA, which is unlikely to pass any time soon.  Under current law, the NLRB, without Congress, may implement significant change through administrative rulemaking. It did so when it issued rules on the appropriate bargaining unit for acute care hospitals, which significantly reduced delays in scheduling union elections within that industry.   

Rulemaking could be used to streamline election procedures, expand voting “access” through electronic or absentee balloting and enhance special remedies and penalties for employer unfair labor practices in initial organizing and first contract situations. Along with traditional case-by-case decisionmaking and the development of internal agency policies, the Board could use rulemaking to realize some of the advantages unions sought, but have yet to achieve through EFCA. 

There may be another reason for recess appointments. The U.S. Supreme Court has agreed to review a case on whether the current two-member Board had a sufficient quorum when it issued decisions over the past year-and-a-half. The District of Columbia Circuit Court of Appeals has ruled that it did not, though the majority of the other circuits have said otherwise. If the Supreme Court rules against the Board, it will nullify all of those decisions. Without an appropriate number of Board members, the current two-member Board cannot rectify the situation.  If the anticipated recess appointments materialize, a more labor-oriented Board would have the chance to re-consider and re-write those decisions.

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The American Bar Association is meeting this week in Puerto Rico while the AFL-CIO holds its mid-winter meetings in Orlando.  EFCA and the state of union organizing have drawn the attention of both groups.

Fred Feinstein, former General Counsel of the National Labor Relations Board, spoke at the Bar Association meeting.  He thinks EFCA in a compromised form is still a possibility.  Card check is gone but mandatory arbitration and increased penalties might remain, along with expedited elections.

Mr. Feinstein attributed the delay for passage of EFCA to more pressing items, such as health care, having to take priority.  Since the health care legislation appears to be coming to a climax, it seems that the “health care” rationale for delaying an EFCA vote will no longer justify inaction. EFCA, at least in some form, will have to be brought up for a vote or buried.

The AFL-CIO leadership has been aggressive in their comments about the political environment.  Gerald McEntee, the chair of the Executive Council’s Political Education Committee, told reporters that it is “time to draw a line in the sand” regarding political candidates who generally do not support labor.

As Mr. McEntee said, “If you are not with us, then you are against us.”

The first candidate to feel Labor’s anger is Senator Blanche Lincoln of Arkansas.  She has been one of the Democratic Senators who has expressed concerns over EFCA.  She also joined the Republican filibuster against Craig Becker as a potential appointee to the National Labor Relations Board.

Another Democrat has emerged to challenge Senator Lincoln in an upcoming Arkansas primary, which is a prelude to the Senator’s reelection bid in November.  A variety of unions have already pledged $3 million to Senator Lincoln’s opponent.

The AFL-CIO is planning on surpassing the $53 million they spent in 2008 this coming November.  They are focusing on six states, California, New York, Illinois, Nevada, Ohio, and Pennsylvania, for major political activity, especially around Senate candidates like Harry Reid (D-Nev.) and Barbara Boxer (D-Calif.).

We cannot help but wonder where all of this money comes from.  Organized labor has lost another 840,000 members since last year.  Yet the money flows, somehow, from the pockets of union members to their union officials for candidates the AFL-CIO support.

Terry Madonna of Pennsylvania’s Franklin & Marshall College conducted a poll in January.  Mr. Madonna said, “We have seen a decline in support among union members for both Obama and the Democrats…part of it is that unemployment brings low job performance ratings, no matter what the party.  And less enthusiasm means that union members are less likely to vote.”

This has to be of considerable concern to politicians who count on labor not only for financial support but also for the active involvement of union members in their campaigns.  Perhaps this is why Vice President Joe Biden appeared earlier this week at the AFL-CIO meeting in Orlando.  He, too, kept EFCA in play, saying that the Administration was still committed to its passage, at least in some form.  Secretary Solis gave the audience reason to expect a recess appointment for Mr. Becker, perhaps as soon as the end of March.

But privately, labor officials have to question whether any legislative change to the National Labor Relations Act is still possible.  After all, if the Senate will not approve Craig Becker as a member of the National Labor Relations Board, the probability that EFCA proponents can muster sufficient support to amend the National Labor Relations Act must be considered remote.

Robert Haynes, the president of the Massachusetts AFL-CIO, said, “We are demoralized…we are not happy about anything.”

We admire Mr. Haynes for his candor.

Another reason for labor’s demoralized status should be that the public’s opinion of unions is declining.  The Pew Research Center for the People, in a poll released on February 23, said that only 41% of those responding had a favorable view of unions, down from 58% in 2007.  A 17% plummet in approval ratings over a two-year period should trouble any thoughtful individual.  

But the Administration presses on.  Last Friday, the New York Times reported that different departments within the Administration are preparing regulations for federal government contractors that could boost the fortunes of unions.  While the specifics have not been released, some reports suggest that high-paying contractors (such as those with union contracts) will be given an edge, while contractors with labor and environmental violations will be disfavored.  Unions have been urging the Administration to utilize its procurement power to enhance labor’s position.  We will monitor those developments carefully and be closely involved in efforts to check any unwarranted uses of government power in this regard.

And what is Andy Stern up to these days, you may ask?  The President has named him as a member of the Deficit Reduction Panel.  Representative Darrell Issa (R-Calif.) believes the appointment is “irresponsible.”  Representative Issa’s House and Oversight and Government Reform Committee has just issued an extensive report detailing the relationship between the SEIU and ACORN.  In what direction does Mr. Stern hope to take the Deficit Commission?  Perhaps he discussed this with Administration officials during one of his 28 visits to the White House since the current Administration took office.
 

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