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

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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