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

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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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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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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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.

***

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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Imberman & DeForest, Inc. recently published a survey “Keeping the Workplace Union-Free.” The survey analyzes NLRB election data and offers several “findings” and “lessons” which should be helpful to our readers.  The survey is based not only on NLRB election data but also on interviews Imberman & DeForest conducted with key executives at 285 companies from the five “Great Lakes States” (Illinois, Indiana, Michigan, Ohio and Wisconsin).

The survey highlights two critical findings.  First, smaller companies lose a greater percentage of union elections than do larger ones.  Second, companies, regardless of size, which are subject to “stealth” union election petitions lose “a far higher percentage of their votes than do companies that were aware of pre-petition union organizing efforts.”

As the report indicates, the survey’s two findings “are critical,” especially in considering the “quickie” election component of the EFCA “compromise.”  The authors state that some of the compromise proposals call for “elections to be held within 5 to 10 days of a union petition.”  The authors argue such a short time frame “eliminates and/or severely restricts management’s ability to inform employees about the negatives of unions…,” making the “results of any such election [] preordained.”

Essentially, the authors argue that if “quickie” elections become law, then every election would become a stealth campaign, which, as we indicated, gives unions a significant advantage.

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In an op-ed article published in The Wall Street Journal, Matthew Kaminski related the latest development in the schism between Andy Stern’s Service Employees International Union (SEIU) affiliate United Healthcare Workers (UHW) and Sal Rosselli’s National Union of Healthcare Workers (NUHW). 

Mr. Kaminski discussed accusations that SEIU threatened workers with deportation and tampered with secret ballots during a June 2009 NLRB election in which the 10,000 home healthcare workers were to determine whether to continue to be represented by SEIU-UHW or whether to be represented by NUHW.  UHW ultimately won the election by a narrow margin. 

Nearly six months after the election, Carlos Martinez, who was an SEIU staff member during the June 2009 decertification election, has claimed, under oath, that he was instructed by his superiors to tell eligible voters that if they voted against the SEIU they could lose their medical benefits and have their green cards revoked (possibly leading to deportation).  Mr. Martinez also claimed he was told to fill out ballots for voters, take the ballots to the post office and pressure voters to spoil ballots already filled out for NUHW.  Mr. Martinez also alleged he and other SEIU staff members visited eligible voters in their homes (he visited 550) to coerce voters to select SEIU.  Mr. Martinez said, “We scared people.  We took the secret ballot away from these people…. [I]t was wrong.”

Mr. Martinez, who said he now “fears for his safety,” claimed he raised concerns with his superiors that the alleged orders were to engage in misconduct and he submitted a complaint to two state agencies, but “was ignored.”  He noted, “Six other []workers confirmed parts of his account in affidavits.”

Finally, Mr. Kaminski said, “Whatever the truth, these scuffles eat up resources and deprive a divided labor movement of a strong leader to push its legislative priorities — most of all, the ‘card check’ bill….”  However, Mr. Kaminski feels “Congress might want to think instead how to better protect people from desperate unions and safeguard their right to choose which [union], if any, they might wish to join.”  We couldn’t agree more.

These allegations are perfect examples of why “card check” and mail ballots are inherently unreliable mechanisms for determining employee support for unions. Under “card check” and mail ballots, employees are subjected to the types of misconduct Mr. Martinez claimed he and other union staff members employed.

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In his article, “Unions Push Issues in State Capitals,” published in The Wall Street Journal, Kris Maher discusses organized labor’s attempt to effect labor law change in state legislatures while pursuing a similar goal nationally in Congress.

Mr. Maher focuses on the Worker Freedom Act passed by the Oregon Legislature and signed into law this past June, which is scheduled to take effect in January 2010.  The Oregon law in effect would prohibit employers from holding mandatory meetings with employees for the purpose of discussing employees’ right to organize.

Not only is there a very strong argument that this law is pre-empted by federal labor law, but as J.L. Wilson, Vice President of Government Affairs for Associated Oregon Industries, is quoted in the article, “[i]t completely undermines employer free speech.”  Associated Oregon Industries, with the assistance of Jackson Lewis LLP, plans on filing a lawsuit challenging the new law on those constitutional grounds.  Attorneys at Jackson Lewis challenged a similar law passed in California based on the ground that it, too, unlawfully violated an employer’s right to free speech.  The U.S. Supreme Court ultimately agreed with our argument, and the law was struck down.

Mr. Maher correctly notes that while bills similar to the Oregon law also were proposed in Connecticut and Michigan, both of those failed to become law, making Oregon the first state to enact such a law.

The Oregon law and attempts in other states to pass similar bills are alarming.  Patrick Semmens of the National Right to Work Legal Defense Foundation stated that the Oregon law is “a step close toward card check.”  Director of Legislative Affairs for the AFL-CIO, William Samuel stated, “While Congress is still debating the federal legislation, we think it’s important to move ahead in states where it’s possible to take action.”

State law initiatives by organized labor must not be overlooked despite the attention on EFCA.

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Yesterday, LaborUnionReport.com posted an article about a “leaked” internal document, “Language Tips on Employee Free Choice,” from the Service Employees International Union (SEIU).

The document shines a light on some of the machinations the SEIU intends to use to make up for the weakness seen in its arguments for the passage of EFCA … we mean the so-called Employee Free Choice Act.  It shows how the Union intends to use rhetoric and “doublespeak” to convince the unwary of the need for Congress to enact its pet bill. 

Some of our personal favorites:

1) Don’t call businesses “Employers”; instead, call them “Big corporations” or “corporate CEOs” or “corporations” or “companies; and

2) Don’t say SEIU or labor “is behind this bill”; rather, say “workers” or “working people” or “working families” are urging the passage of the bill.

The SEIU apparently thinks smoke and mirrors are a substitute for sound arguments.  Let’s hope the Union is wrong.

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The announcement by the National Mediation Board (NMB) on November 3 of a proposed reinterpretation of the Railway Labor Act (RLA) to make it easier for unions to organize may be a harbinger for EFCA, as well. Rather than ask Congress to amend the 75-year-old RLA or follow normal rulemaking procedures, the new, two-person pro-labor majority at NMB (both members are former union officials) proposed the dramatic change by “administrative fiat.” Should EFCA fail in the Senate, we may see the NLRB adopting the same activist approach in the Labor Board elections it administers.

Section 2, Fourth, of the RLA provides “t[he] majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class….” The Supreme Court in Virginian Railways Co. v. System Fed’n, 300 U.S. 515 (1937), stated that the statute “confer[s] the right of determination upon a majority of those eligible to vote” (not a majority of the voters), but is silent as the manner in which that right shall be exercised. The new NMB, however, ignoring 75 years of experience, now proposes to reinterpret the Act and disregard the Supreme Court. It argues that “a majority of those eligible to vote” does not mean what it says, but rather means that only a majority of those voting could decide an RLA election. Thus, only a minority of those eligible to vote could win the day for a union. Does this sound Orwellian?

Let’s take this one step further. Why not dispense with an election altogether? The RLA does not actually compel an election. NMB can use “an election or employ any other appropriate method” for determining majority representation. And, unlike the NLRA, which allows an employer to insist on an election, no such right exists under the RLA. Therefore, the NMB could allow an EFCA-style card check, followed by an EFCA-style bargaining order. 

This possibility is not farfetched. Currently, the NMB does not use a traditional ballot.The ballot it uses does NOT have a box to check that says “No Union”. There is only a “Yes” box. Of course, with the requirement that a majority of eligible voters affirmatively select a bargaining representative, there is no need for an employee to vote “no.”   To oppose union representation, the employee simply need not vote.  That will change if the NMB proposal is adopted.

For logistical reasons involving often widespread electorates, the NMB never uses a voting booth. It uses a mail ballot-type procedure … which of course opens the possibility that ballots can be cast in the presence of a union representative … a critical deficiency also found in the original EFCA proposal. With changes in technology, the NMB now allows voting by telephone and the Internet. Can the NLRB be far behind? And what if an RLA employee no longer wishes to be represented by a union? He is out of luck. There is no procedure for decertification under the RLA.

Critics of the current NMB procedure claim it is unfair to require a majority of employees to vote in favor of union representation. But those same people do not complain that it takes a majority of the employees to de-authorize a union under the NLRA. Is there anything inconsistent there?

Agency members with an activist agenda, whether at the NMB or the NLRB, can craft arguments to avoid clear statutory language, Supreme Court decisions and 75 years of precedent. If these proposed rules are successfully implemented by the NMB, the NLRB may follow suit quickly. Hurry-up ambush elections, union access to company property, equal time at captive audience meetings, access to employee names and addresses before a petition is filed, access to company bulletin boards or Internet — all of this can be accomplished by administrative fiat, rulemaking or decisions without EFCA.

Related Link -Dougherty - Full NMB Dissent

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"EFCA" is not just an abbreviation for the Employee Free Choice Act. In a larger sense, it stands for a dramatic shift in our nation's labor relations policy that the Obama Administration has begun implementing.

The most recent example of this shift is the proposed change in the procedure for selecting union representation under the Railway Labor Act, the labor statute that covers airline and railroad workers. For more than 75 years this law has required that a majority of eligible workers vote affirmatively for union representation before a union is entitled to bargaining rights. This process has worked well. In fact, union representation in the railroad and aviation industries far exceeds union representation in other private industry.  

Under a rule proposed by the current, labor-dominated, National Mediation Board, however, the long-standing rule would be eliminated. A new rule allowing a minority of the eligible employees to decide the issue would replace it. Representation would be determined by a majority of those voting rather than by a majority of eligible voters.

So why change a system that is working? It’s simple. The unions are attacking long-standing policies and procedures to make their selection easier.  Even though the National Mediation Board repeatedly has rejected union efforts to change the way elections in these industries are conducted, it looks like the labor movement has found a pivotal new friend at the Mediation Board. If adopted, and if it withstands the substantial legal challenges that are anticipated, a small minority of eligible employees will be able to make the decision for the entire group. Mediation Board rules already make voting for unionization very simple -- by allowing telephone and Internet voting. Under the proposed new rules, employees will no longer be able to vote “no” by “ripping up” their ballots and unions need worry less about appealing to the entire workforce. They will not have to prove an absolute majority of employees wants representation. As long as more employees vote yes than no, even if only a small percentage of the workforce may actually vote, that will do.

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Last week we told you that “Organized Labor certainly has the ‘ear’ of this Administration.”  We didn’t know how right we were.

On Friday, the Obama Administration published a partial list of visitors who have visited the White House.  Andy Stern, President of Service Employees International Union (SEIU), visited 22 times, more than any other single individual on the list.   Additionally, newly-elected President of the AFL-CIO, Richard Trumka, visited 7 times.

There is no doubt that Vice President Biden meant it when he said to a group of Labor leaders only 10 days after President Obama’s inauguration “Welcome back to the White House!”

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Bloomberg.com reporter Holly Rosenkrantz believes things have been “looking up” for Organized Labor.  Rosenkrantz’s October 29 article cites several recent victories for Labor, including newly imposed federal tariffs on tires produced overseas for U.S. manufacturers, free trade agreements being put on hold and a potential rule change making it easier for airline workers to organize.  Despite the apparent differences among these victories, Rosenkrantz argues that there is a “common thread” linking them together — President Barack Obama. 

Rosenkrantz stated, “Organized labor is gaining momentum under the Democratic administration of President Barack Obama.”  University of California at Berkley Professor Harley Shaiken is quoted as supporting Rosenkrantz’s position, stating that “[a]fter eight years wandering in the wilderness, unions have unprecedented access to the White House.”  Further, AFL-CIO’s newly elected President, Richard Trumka, says he “meets monthly” with President Obama, and White House Spokesperson, Tommy Vietor, said Administration officials meet with labor leaders “frequently.” 

One thing is clear: after spending a record $450 million during the last election cycle, Organized Labor certainly has the “ear” of this Administration.

While she admits that Labor’s most important goals, EFCA and government-run health insurance, “remain[] in doubt,” Rosenkrantz observes that unions continue to “make[] other gains through executive orders, rule changes and appointments.”

One of this Blog’s authors, Michael J. Lotito, is quoted in the article, reminding us that despite the gains labor already has made, “[t]here is going to be a flurry of labor action down the pike.”

We welcome your thoughts.

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Senate Committee Avoids Public Hearing, Despite Call from Employer Groups

Yesterday, the Senate Committee on Health, Education, Labor & Pensions (“HELP”) announced it had scheduled a meeting for October 21 to consider without a hearing the Administration’s three nominees to the NLRB.  The HELP Committee’s action occurred despite pleas by the U.S. Chamber of Commerce and National Trade Associations to Committee Chairman Tom Harkin (D- IA) and Ranking Member Michael B. Enzi (R- CO) that a hearing be conducted before the Committee passes on the nominations.

One of the nominees, Craig Becker, was the subject of a Wall Street Journal editorial yesterday arguing that a public hearing for Becker is needed since the “stakes are too high to let him pass without more Senate and public scrutiny.” (“Acorn’s Ally at the NLRB; Obama appoints an SEIU man with ties to Blago [former Illinois Governor Rod Blagojevich,]” WSJ, October 15, 2009).

EFCA or no EFCA, October 21, 2009, may well be remembered as the first day of so-called labor law reform.

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A press release from the Republican Committee on Education and Labor, “Poll: Quebecers Want to Say ‘Adieu’ to Card Check,” discusses a recent survey finding that Quebecers are unhappy with their existing labor laws, which currently permit the certification of unions based on signed union cards.  The survey found that more than 70% of Quebecers want their laws changed so that unions could only be certified based on the results of a secret-ballot election.  What is more, 80% of respondents in the Quebec survey who were union members felt “card check” should be eliminated and replaced with a secret ballot election system.  This suggests Quebecers overwhelmingly would support existing labor laws in the United States that provide for secret-ballot union representation elections and would reject EFCA’s card check substitute. 

Marcel Boyer, senior economist at the Montreal Economic Institute (MEI) said that “Quebec needs to overhaul its legal framework in labour relations, first by making secret ballot voting mandatory when union certification is being sought.”  Mr. Boyer also said such a reform would “guarantee that workers could express their real opinion….”

It seems as if those who have card check can’t wait to get rid of it!

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House Democrats plan to put EFCA on the House floor for a vote in about a month, a credible source just reported to this blog. We are not sure which version of EFCA will be sent to the floor, but House Democrats, with their overwhelming majority, could seek to pass the full version of EFCA, including its card-check provision. If the Senate passes the "Specter Compromise" version of EFCA, a Conference Committee would have to iron out the differences.

We will keep you informed of developments.
 

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When Change to Win left the AFL-CIO in 2005, 35% of the labor federation’s revenue left with it. Despite this, Labor provided massive, unprecedented support for political purposes in the last two election cycles. The investments have resulted in a “worker friendly” Congress and White House.

But there are negative results for Labor as well. The Machinists union issued a report in June showing the AFL-CIO’s net assets have fallen to a negative $2.3 million in June 2008 from a positive $66 million in July 2000. Do not count on this uncomfortable fact being discussed openly in Pittsburgh.

In addition, Greg Junemann, President of the IFPTE, decided in July not to run for Secretary-Treasurer of the AFL-CIO, in the name of “unity.” After meeting with Richard Trumka, Mr. Junemann’s goal of returning the AFL-CIO to financial stability would now be achieved with a membership in the AFL-CIO finance committee.

So how will the AFL-CIO help itself financially? Like any other business, it must reduce costs, increase revenues, or both.

Which brings us back to EFCA. To increase revenues, unions must increase membership. To do that, they must find an easier and faster way to organize and get first contracts with mandatory union dues payments as a condition of employees maintaining their jobs.

Failing that, unions will not be able to support their favored politicians in 2010 and 2012. And this is why EFCA is not dead. It is just lurking in ambush. The financial interdependence of Labor and legislators creates a compelling environment for a deal.
 

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