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

Immediate action called for by the U.S. Chamber of Commerce in connection with the Becker nomination to the NLRB. See Chamber’s release below.  Additional information about the possible impact of this appointment will be found in several recent Jackson Lewis EFCA and Labor Law Reform blog. If you would like to discuss the significance of this development or have any questions please call Mike Lotito, Marty Payson, Phil Rosen, Roger Kaplan or the Jackson Lewis attorney with whom you regularly work.

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TO: All Members of the U.S. Chamber’s Labor Relations Committee

We wanted to take a moment to update you on the nomination of Craig Becker to the NLRB. As you may recall, at the end of last year his nomination was returned to the White House since no unanimous consent agreement was reached to keep his nomination pending (unanimous consent was reached for the nominations of Brian Hayes and Mark Pearce who are still pending).

Last week, the president re-submitted Mr. Becker’s nomination to the Senate. Today, the Senate HELP Committee scheduled a hearing on Mr. Becker’s nomination for Tuesday, Feb. 2, at 4:00 p.m. It has also scheduled committee consideration of Mr. Becker’s nomination for Thursday at 10:00 a.m.

It is expected that should the Committee again approve Mr. Becker’s nomination, one or more Senators will place a hold on the nomination. However, a hold does not prohibit a nomination from moving – rather it means that supporters of the nominee need to schedule floor time and get 60 votes to force a vote on the nominee.

Even though the Massachusetts election seems like old news, Sen.-Elect Brown has not been seated and does not expect to be seated until Feb. 11 – that means Senate leadership has a narrow window to try to confirm Mr. Becker during this lame-duck period while they maintain a supermajority of 60 votes.

It should also be noted that while Republican Senators Mike Enzi and Lisa Murkowski supported Becker’s nomination last year as part of a package, it is not at all clear that they will support Mr. Becker this time around especially in light of the way Becker supporters appear to be ramming this through.

Thus, now is the critical time for those opposing the Becker nomination to weigh in both with HELP Committee members and with moderate Senators. The Chamber earlier sent a letter (link below) calling for a hearing on Mr. Becker and we also coordinated a joint sign-on letter for members of the business community opposing the nomination (link below).  There is another joint sign-on letter being prepared for national trade associations and if you would like the text or more information please let me know (this letter is for national trade associations only).

I would encourage those of you with grassroots programs to activate them – we sent out a grassroots letter a few days ago and quickly generated more than 6,000 letters to Capitol Hill. We plan to do another grassroots communication as well.

Key targets on the HELP Committee include Democrat Michael Bennet (CO) (he is new to the Committee) and Republicans Lisa Murkowski (AK) and Mike Enzi (WY).

Key targets not on the HELP Committee include Republicans Olympia Snowe (ME), Susan Collins (ME),  George Voinovich (OH) and Democrats Ben Nelson (NE), Lincoln (AR), Pryor (AR), Landrieu (LA), Bayh (IN), Hagan (NC), Webb (VA), and Warner (VA).

Chamber letter calling for a hearing:

http://www.uschamber.com/issues/letters/2009/090724becker.htm

October association sign-on letter:

http://www.uschamber.com/issues/letters/2009/091020nlrb.htm

Background information on what to expect from the Obama NLRB:

http://www.uschamber.com/publications/reports/0909nlrbreport.htm

Michael J. Eastman

Executive Director, Labor Law Policy

U.S. Chamber of Commerce

1615 H Street NW

Washington, DC  20062

(202) 463-5342

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The Senate HELP Committee will hold a hearing on the Craig Becker nomination to the NLRB on February 2 at 4:00 p.m. (http://help.senate.gov/Hearings/2010_02_02/2010_02_02.html).  The Committee will then consider him and we expect Becker’s nomination will be approved and likely referred to the full Senate for confirmation.  Senate Democrats may try to rush Becker’s confirmation vote as their 60-vote “supermajority” will vanish with the swearing-in of Massachusetts’ Republican Senator-elect Scott Brown. 

It has been reported that a group of 66 labor law professors said in their January 21, 2010, letter to the Senate’s majority and minority leaders that they “believe firmly that, if confirmed, Mr. Becker will prove to be one of the most respected Board Members in the history of the NLRB.” This may not be as objective an academic assessment of Becker’s qualifications as it seems.  Two leaders of this group, Catherine Fisk of the University of California-Irvine School of Law and Benjamin Sachs, like Becker, have ties to SEIU. They were appointed to the SEIU Ethics Review Board in 2009. Additionally, Sachs was Assistant General Counsel of SEIU, and Fisk has been openly in favor of EFCA. Another leader of the group, James Brudney of Ohio State University’s Moritz College of Law, was a law firm associate who represented unions and was Counsel to the Senate Subcommittee on Labor 1987-1992, when the Senate had Democrats in the majority.

We will keep you updated. 

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Some years ago, a seasoned observer of the Washington scene commented to me, “A month is a lifetime in D.C.” I was reminded of this truism last week when Scott Brown was elected. 

The “EFCA is coming” crowd finally breathed again for the first time in months. Even IAM President Buffenbarger had said EFCA was a “dead issue” for 2010, although AFL-CIO legislative leader Bill Samuel was still holding out hope for passage, consistent with federation president Trumka’s prediction that EFCA will be enacted in the first quarter of 2010.

I don’t know what will happen. While it seems likely EFCA, or a scaled-down “EFCA-lite”, will not passed in any form, it also had seemed likely that a Democrat would be elected to fill Senator Kennedy’s seat. Indeed, it had seemed likely that Senator Clinton would be her party’s candidate for President, heavily favored to defeat Senator McCain.

The fact is no one knows for certain what is really going to happen. Power shifts quickly in D.C., producing uncertainty that worries many thoughtful business leaders today.

We do know, however:

·         President Obama is pro-labor.

·         SEIU head Andy Stern has visited the White House 28 times.

·         Labor’s share of the private sector workforce is now down to 7.2%, another significant membership loss over the previous number.

·         Labor Secretary Solis, pointing to the declining union membership, said this underscores why EFCA continues to have the Administration’s support.

·         If Labor is going to exercise more clout in the political process based on the Supreme Court’s recent campaign finance decision, it needs more (not less) members for campaign “donations.”

·         The Democratic Party is by far the largest beneficiary of Labor’s spending.

·         Democrats are in electoral trouble.

·         It is in the best interest of Labor and their beneficiaries to create conditions enabling the benefactors to give more.

·         Therefore, Labor-dependent politicians will continue to help find ways for unions to increase their membership.

·         Craig Becker was re-nominated to the NLRB immediately after Mr. Brown was elected.

·         Almost no one paid attention to any of this, of course, since “EFCA is dead.”

A lifetime in Washington is all the sweeter when policy and political fortune are so mutually sustaining — especially if it lasts more than month.   

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National Labor Relations Board Chair Liebman wrote in a March 2008 Journal of Labor and Society:

“The existence of a strong independent trade union movement is critical to a democratic society. Similarly, the system of collective bargaining … affords an effective mechanism to distribute resources and as such, it furthers a collective national sense of fairness …. Unquestionably, collective bargaining contributed to the expansion of the middle class, and the decline of organized labor is often linked to the decline of the middle class and growing income inequality.”

Chair Liebman’s writings, taken as a whole, along with her background as a union lawyer, clearly show her support for “the modernization” of our labor laws to further promote “fairness.” She has not, however, been able to place her mark on our laws. This is because Ms. Liebman either has had a minority or dissenting view on decided cases or been unable to act with the current two-person membership on the Labor Board.

Regardless of EFCA’s fate, a Labor Board with Ms. Liebman and Mr. Becker in the majority, over time, could radically change existing law to “encourage” collective bargaining. Indeed, it is not uncommon for Ms. Liebman to cite approvingly Mr. Becker’s writings to bolster her positions advocating “change.”

What will their agenda look like? Professor Samuel Estreicher of New York University School of Law has articulated it rather well. In his opinion — and we dare say, in the view of a majority of the new Labor Board and the Board’s new General Counsel, all of whom will be in place sometime in 2010 — expect the following based on the current National Labor Relations Act, without legislative change:

1.      Board elections to take place in 14 to 21 days after a petition is filed, depending upon the complexity of issues, instead of today’s 42-day target;

2.      Elections directed with the ballots of contested voters sealed until a post-election hearing is held;

3.      Voting through the Internet and by mail instead of at the employer’s premises;

4.      Greater use of rulemaking;

5.      A new, required poster explaining employee rights to organize with a model authorization card. One possible card would authorize union representation without an election;

6.      Some right of union access to employee premises to meet a new test of “laboratory conditions” for a “fair” election;

7.      Revised “Excelsior” list requirements for turning over names and addresses when, possibly, 30 percent of the employees sign union recognition cards instead of union authorization cards;

8.      Permission for a union and an employer to negotiate key terms of an agreement and publicize them in the absence of majority support;

9.      Expanded Labor Board requests for injunctive relief, including reinstatement, to remedy alleged unfair labor practices;

10. Imposition of negotiation timetables, payment of union bargaining expenses, and union access rights as remedies for “bad faith” bargaining; and

11. Labor Board advisory opinions that an employer’s bargaining conduct was in bad faith so any strike would prevent the hiring of permanent replacements.

EFCA may or may not be dead. The Labor Board, however, lives to re-interpret the statute another day. It’s only “fair.”

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Workplace discrimination on the basis of an employee’s support for, or opposition to, a labor organization has been unlawful since 1935, when the National Labor Relations Act (NLRA) was passed.  One exception to this principle of non-discrimination:  In non-right-to-work states, such as Massachusetts and California, an employee can be required to pay union dues under a union security clause in a collective bargaining agreement.

A second exception, however, apparently has been agreed to by labor union leaders and the White House in the guise of “health care reform.”  A deal involving the taxation of “Cadillac” benefit plans will exempt from coverage until 2018 those plans found in collective bargaining agreements (“excise tax deal”).  If enacted, union-free employees will be discriminated against – legally – in favor of unionized employees. 

What motivated this disturbing development?  Political expediency?

Some now believe “health care reform” must be enacted at any cost.  Labor union support is necessary to achieve this. Unions therefore need to be rewarded for their past political support and to ensure their continued loyalty.  Would the SEIU have given $685,000 to the unsuccessful Massachusetts Democratic candidate for Senator if the excise tax deal was not reached?  Will organized labor campaign as passionately in 2010 as in 2008 for political allies if taxation of health plans was to be imposed on a non-discriminatory basis?  Ask labor leaders Richard Trumka and Andy Stern.

There is also a practical reason why unions insisted on the excise tax deal.  Labor has had a difficult time organizing new members because, today at least, unions cannot guarantee their promises of benefit improvements will be realized after good faith negotiations.  The NLRA affords the parties the freedom to bargain and make contracts without pre-determined mandates.  This applies to health insurance.

If the excise tax deal becomes law, this freedom will likely go by the boards, and with it, employee options for health insurance.  Workers desiring good health insurance, but burdened by the excise tax for plans in union-free settings, may have difficulty resisting union organizing and bargaining demands for union-sponsored plans.  Look for unions to argue that union-free employees can remove the cause of their costly workplace discrimination by…well…joining the union which created the discrimination in the first place!

Careful observers of the “labor reform” movement are not surprised by this crass political blackmail.  EFCA, pending in Congress, also would restrict freedom of contract through government-mandated arbitration of initial collective bargaining agreements.  Further, EFCA eliminates secret ballot elections in favor of union card recognition.  From Big Labor’s perspective, the excise tax “compromise” is a welcome sign of those statutory changes.  From an employee, employer and American citizen’s perspective, however, it is an ominous precursor.

A vote in favor of a health care bill with its excise tax compromise is a vote for workplace discrimination.  Do not expect to hear that from Washington.  

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On January 1, 2010, Oregon Senate Bill 519 became effective, making Oregon the first state in the country to bar employers from requiring employees to attend meetings to learn about the company’s views about unionization. The law has several components, including the creation of a new classification of wrongful termination lawsuits and the requirement that all Oregon employers post a notice advising employees about their rights under SB 519. 

Jackson Lewis was selected by Associated Oregon Industries and the United States Chamber of Commerce to challenge SB 519 on behalf of their membership. On December 22, 2009, we filed a federal lawsuit against the Oregon Labor Commissioner, seeking injunctive relief and a declaration that SB 519 violates the National Labor Relations Act and the United States Constitution. We are optimistic the court will rule in our favor. Meanwhile, SB 519 remains in effect and employers throughout Oregon are mandated to comply with the posting requirement.

The law does not provide specifics about the posting requirement, other than to state it must be posted in a “place normally reserved for employment-related notices and in a place commonly frequented by employees.” The posting must apprise employees of their rights under SB 519. The Oregon Bureau of Labor and Industries (BOLI) has stated it does not intend to publish a model notice, leaving employers in a state of uncertainty. Employers can either post the statute itself (available at http://www.leg.state.or.us/09reg/measpdf/sb0500.dir/sb0519.en.pdf), or develop a separate posting. 

Jackson Lewis has developed a notice that employers may download and post. Although we believe the posting is compliant, please bear in mind that it has not been approved by BOLI.     Its format follows the notice of unemployment rights published by the Oregon Employment Department. 

We will provide further updates on the SB 519 challenge as it progresses through the trial court and beyond. Jackson Lewis attorneys are available answer questions about SB 519 and other workplace laws.

(Thanks to Scott Oborne in our Portland, Oregon office.)

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As reported here, the Senate late last year unanimously refused to carry over Mr. Becker’s nomination for consideration in the next Session of Congress. The nomination was thus returned to President Obama.  Now, according to the New York Times, President Obama has decided to renominate Craig Becker as a member of the National Labor Relations Board.

Due to the controversy surrounding Mr. Becker’s beliefs and the fact that Senator McCain already placed a hold on Mr. Becker’s first nomination, this is a bold move for the President.  Hopefully, this time the Senate HELP committee will hold hearings to allow for a robust debate regarding Mr. Becker’s qualifications.

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