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

The U.S. Senate has unanimously confirmed both Mark Gaston Pearce and Brian Hayes to serve as members of the National Labor Relations Board.  This brings the membership at the Board from four to five for the first time since 2007.   

Mr. Pearce has already been serving as a member of the NLRB since April 2010, when he received a recess appointment from President Barack Obama.  Mr. Hayes, a Republican nominee who did not receive a recess appointment from President Obama, joins the Board as its fifth and final member. 

The current composition of the Board therefore is as follows:

1)      Chairman Wilma Liebman (confirmed through August 2011)

2)      Member Peter C. Schaumber (confirmed through August 2010)

3)      Member Craig Becker (serving a recess appointment that expires at the end of 2011)

4)      Member Brian Hayes (confirmed through December 2012)

5)      Member Mark Gaston Pearce (confirmed through August 2013)

Craig Becker, who was given a recess appointment in April, along with Mr. Pearce, was not confirmed in the June 22 Senate action. His nomination for a full term is still pending.  This means Mr. Becker can continue to serve on the Board only until the end of 2011.  Furthermore, Member Schaumber’s term will expire in about two months.  This will leave another vacancy on the Board to be filled by President Obama.  We will keep you posted with any updates on Mr. Schaumber’s replacement.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

“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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link