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

Author: Roger Kaplan

Organized labor may be very pleased with the Occupational Safety and Health Administration these days because of a recent Agency interpretation  that a non-union employee may select a non-employee who is “affiliated with a union” or with a “community organization” to act as his representative during an OSHA inspection of his employer’s worksite.  The interpretation came in a response to a letter from a health and safety specialist for the United Steelworkers on February 21, 2013.  The interpretation could be used by unions, their supporters and “salts,” as an invitation to trigger OSHA inspections at targeted union-free facilities for the purpose of gaining access for organizing, with OSHA’s help.  (A “salt” is a union infiltrator sent to work at a non-union employer with the objective of organizing its employees.)

The Agency seized on language in the OSH Act [Section 8(e), 29 USC § 657(e)] that “a representative authorized by [the employer’s] employees” may accompany an OSHA compliance officer on his or her inspection.  This may be stretching the statute too far, in our view . OSHA regulations interpreting this provision (29 C.F.R. §1903.8) contemplate that such a representative “shall be an employee(s) of the employer.”  The same regulations appear to use the “representative authorized” phrase to mean an “authorized representative of employees,” as well.  The latter expression is indistinguishable from “authorized employee representative,”  used elsewhere in OSHA’s rules to mean  “an authorized collective bargaining agent of employees.” (See Recordkeeping Rule, 29 C.F.R. §1904.35).   A stranger-union organizer is neither an employee of the employer nor an authorized collective bargaining agent of its employees.

The regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, but the examples offered include “an industrial hygienist or a safety engineer” – not union business agents and organizers – and there are plenty of technical specialists available to OSHA who are not affiliated with unions.  OSHA’s Field Operations Manual, also mentioned  by OSHA in its February 21 interpretation, was revised during the Obama Administration to remove a Clinton-era restriction that employee representatives during inspections on non-union worksites had to be members of a workplace safety committee or an individual employee selected by his/her coworkers for the purpose.  It also withdrew a 2003 OSHA interpretation rejecting the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection -- to avoid confusion, it said. Compliance officers have discretion  as to who may accompany them on an inspection, but it is unclear what guidance they will take from this letter.

With its questionable spin on statutory and regulatory language, OSHA joins the NLRB in laying out a welcome mat for union organizers at union-free plants.  Unions may say this interpretation is nothing new, but we are not so sure.  Non-union employers may have to weigh carefully whether to allow non-employee union or community organizers on their premises during OSHA inspections or to refuse them access and risk citations and penalties. 

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Cuba is going to lay off 500,000 state workers between now and March 2011. According to the Cuban Workers Federation, the only union in the country, the cause of the job displacement is clear: "Our state can’t keep maintaining…bloated payrolls."

Similarly, the public sector unions in the United States representing a significant number of all of such workers (about 35%) are experiencing a taxpayer backlash. Governor Chris Christie of New Jersey took on the teacher’s union and won. Gubernatorial candidate Meg Whitman in California is neck and neck with Jerry Brown as she takes on the California Nurses Association. As public sector unions are perhaps the most dynamic part of the labor movement at the moment, this is not good news for organized labor.

Only 19% of Americans in a recent survey said they would increase their taxes to prevent layoffs of government workers. No wonder gubernatorial candidate Andrew Cuomo admits that public pensions are "out of line" with reality. And just wait and see how popular the teachers’ unions will be after "Waiting for Superman" debuts in our theatres. (Note: My daughter is a fourth-grade teacher. I love teachers…just not their union. And, for the record, I also love nurses!)

So everyone…even Cuba…is starting to "really" get it…everyone, of course, except the unions. The AFL-CIO, SEIU, and AFSCME are going to spend $100 million this November towards the election. Their beneficiaries will be more beholden to them than ever so do not be surprised the first-responder labor bill (to give public safety officers the right to bargain collectively) surfaces in the darkest hours of any lame-duck session. Unions will need pay back to motivate them for 2012.

Even the President admitted the other day that EFCA is for all practical purposes dead. Labor wanted it all and settled for Craig Becker, an NLRB takeover, an NMB takeover, and more labor friendly rules for government contractors. One hundred million dollars just doesn’t buy what it used to.

The November elections are important for many reasons. If more Governor Christie-types emerge, labor may be in trouble at the bargaining table. The wages and benefits of the public sector need to "get in line" with economic reality. Even the Cuban union knows that.

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Membership in unions is on the decline. The Bureau of Labor Statistics reports that the number of unionized workers dropped by 771,000 in 2009, largely reflecting the overall drop in employment due to the recession. With hopes for the passing of the Employee Free Choice Act on the wane, unions have to look elsewhere to boost membership. "We’ve had our problems so we’ve had to diversify," said Marty Frates, secretary-treasurer of Teamsters Local 70 in California, to The Wall Street Journal on the addition of 40 or so employees of an Oakland, California, marijuana-growing company as new Teamsters members. (Medicinal-marijuana use is permitted under California law and dispensaries are common in the state.)

The Teamsters is not the first to see opportunities in marijuana in California. United Food and Commercial Workers (UFCW) represents workers at California’s Oaksterdam University, where students go to learn how to be pot entrepreneurs.

The Service Employees International Union, the largest labor union in California, has endorsed the California ballot initiative (Proposition 19) that seeks to allow those at least 21 years of age to grow and possess marijuana in the state. Union President Bill A. Lloyd reportedly wrote to the pro-legalization campaign that the union "look[s] forward to joining you in any way we can to help pass Proposition 19." Other California labor unions that have come out in support of Proposition 19 include the UFCW, the International Longshore and Warehouse Union, and the Communications Workers of America.

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The President Barack Obama spoke at a recent meeting of the AFL-CIO and after prepared remarks, he responded to a question from AFL-CIO President Richard Trumka. The nub of the exchange was that the President would advise employees to join a union, just as President Franklin Roosevelt did back in the 1930s.

Is that what we need today? Let's examine President Obama's advice by comparing today's workplace with that of the past.

In 1935, the U.S. unemployment rate was more than double what it is now. There were no workplace protections or overtime requirements. The minimum wage law was still a few years away.

Workplace health and safety was something most workers only dreamed about. Discrimination on the basis of immutable characteristics was permitted. There were no legal consequences for workplace harassment.

Employees were not entitled to leave when a loved one was ill. There were no such things as reasonable accommodation or time off when someone was, for example, undergoing chemotherapy treatments.

Instead of thinking their "employees were their most important asset," employers thought workers were fungible. Only the most progressive organizations had employee handbooks, complaint resolution systems, and proactive training for supervisors.

In such an environment, workers turning to a union for representation made tremendous sense. Thus, by 1955, unions reached their high watermark, representing 35% of the American workforce.

Today's workplace is much different. It is highly regulated...some would say the rules are so complex they inhibit job creation. Employers have adopted sophisticated workplace policies and procedures that provide for respect, dignity, recognition, safety, non-discrimination and advancement.

Supervisors receive regular training on proper interviewing techniques and how to embrace diversity in the workplace. Many organizations have "zero" tolerance policies for workplace harassment. Indeed, some company boards require senior officials to resign when their conduct gives rise to serious question.

A variety of federal and state agencies protect employees, for free, as required posters on company bulletin boards advertise. Why pay a union for what is already an entitlement? This does not mean an employer is "anti-union"; it just means the union is irrelevant. Today, not surprisingly, the unionization rate of the private sector is 7.2%.

Indeed, modern workplace disputes between unions and their members may be as common as those between an employer and its employees. Take, for example, the upcoming union election at Kaiser Permanente in California involving 42,000 employees. The question being asked of these workers is whether they want to continue to be represented by the Service Employees International Union or a new union headed up by Sal Rosselli, a former SEIU leader who now heads a new breakaway union. One account says the SEIU may spend up to $40 million in trying to preserve its representation of these members. That's a lot of dues spent on inter-union squabbling!

Do some employers abuse their employees even today? Can a union sometimes constitute a value proposition? "Of course," is the obvious answer.

But that does not mean a union is the "best way" or a "preferred way," or even a "desirable way," of achieving workplace satisfaction. The only people who can answer that question are the employees themselves, preferably through a secret ballot election based on all relevant facts presented in a non-coercive spirit.

"Maybe the President thinks he needs a union," the American worker may say, "but that does not mean I do."

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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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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 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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An article in the February 11th edition of The Wall Street Journal quotes a number of Union leaders calling for President Obama to seat Craig Becker as a member of the National Labor Relations Board as a “recess appointment” despite the fact that, earlier this week, the Becker nomination failed to garner the 60 votes needed to overcome a filibuster. 

Service Employees International Union (SEIU) President Andy Stern said, “I think [Craig Becker] should be appointed.  I think a majority should rule here, and I hope the [P]resident takes it under strong consideration.”  Leo Gerard, President of the United Steelworkers Union, also asked for a recess appointment of Becker.

President Obama has not indicated whether he would appoint Becker while Congress was in recess.

We will let you know as soon as we hear anything new.

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This week’s National Mediation Board (NMB) hearings gave us another example of the Administration’s ongoing efforts to further Labor’s agenda and make it significantly easier for unions to organize. In an effort to reverse 75 years of experience in conducting union elections under the Railway Labor Act (RLA), the new Obama-appointed NMB member, with a union background, joined with another member, also with a union background, in an attempt to steamroll adoption of a change in NMB voting procedure which would eliminate the need for a union to demonstrate majority support in the voting unit it is attempting to organize.

At the hearings, John Conley, a representative of the Transport Workers Union, stated candidly his union’s position that labor needs this change because unions were not winning enough elections. This admission is astounding, considering that the rate of union election successes under the RLA far outstrips that under the NLRA. During the first six months of this year, unions were winning 73% of all NLRB elections, up from 66% last year. According to the unions, however, winning almost three out of every four election is still not enough.

Several of those testifying painted a grim picture of both “labor politics” and the lack of NMB neutrality exhibited in the proposed rulemaking. What really is driving this issue for the unions is the merger of Delta Airlines and Northwest Airlines. Following the merger, the two unions representing former Northwest Flight Attendants (AFA) and Mechanics (IAM) faced elections at the post-merger Delta, in which union members would vote with Delta’s unrepresented employees in the same voting units. Both unions filed for elections, but, following delays in processing those election applications by the NMB — and coincidentally,just days before the NMB announced the rulemaking — both unions withdrew those applications, likely anticipating an easier road to victory. The timing of these events calls into question the integrity of the NMB process. Considering the enormous stakes the unions have in these elections, involving tens of thousands of employees and potentially millions of dollars in dues revenue for the unions, the handling of its notice of proposed rulemaking (NPRM) casts a shadow over the NMB’s actions.

Further illustrating its results-driven approach is the fact the Board is ostensibly limiting its review to just a single change in voting procedures, without addressing other changes which are equally critical for review. At the hearing, Randel Johnson of the U.S. Chamber of Commerce criticized the Board for ignoring the Chamber’s proposal that as the Board considers changing its voting rules, it should also consider establishing a clear decertification procedure.  Johnson argued that if the Board makes it easier for unions to organize, it should similarly protect the rights of employees who no longer want unions that fail to represent them adequately. This argument is all the more compelling if the Board’s rule changes allow representation by unions selected by only a minority of the electorate.

Roger Briton, a Jackson Lewis partner, appeared at the hearing on behalf of the Airline Services Council of the National Air Transport Association, an aviation industry ground handling group. He cautioned the Board about the potential instability which is likely to follow the proposed rule change.  Briton’s remarks submitted at the hearing are available here.  Regrettably, union’s organizing agenda is being adopted and advanced by a friendly NMB majority.

Connect the dots…. The same week these proceedings took place, the Department of Labor announced it would seek to reinterpretation the “advice” exception under the Labor-Management Reporting and Disclosure Act (LMRDA) so as to broaden the application of the law. The unstated objective is to chill employer free speech in union organizing situations, making it easier for unions to organize.

Connect the dots…. The pending EFCA labor law reform proposal has as one of its components the imposition of harsh financial penalties against employers who may improperly express their opposition to unions. To avoid the possibility of such penalties, employers are likely to give up their free speech rights and limit their opposition to union organizing, making it easier for unions to organize.

Connect the dots…. Amending the NMB election procedures, as proposed by the two Board members, would allow the selection of union representation not by a majority of employees, as has been the case for the past 75 years, but rather by a minority of eligible voters. The objective it to make it easier for union to organize.

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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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Caroline Kennedy spoke about her late uncle Ted to the AFL-CIO convention on September 14. Most appropriately, the late-Senator Edward M. Kennedy was recognized for his consistent support of Labor over his decades of service.

According to Senator Tom Harkin (D-IA), Labor narrowly missed getting its greatest prize – EFCA – as a result of Senator Kennedy’s battle with cancer. Senator Harkin claims that a “EFCA compromise” was reached in July and was ready for a vote, but Senator Kennedy was too ill to participate in person.

Where are we today with EFCA? The AFL-CIO’s John Sweeney told BNA, “we’ve been doing a lot of work behind the scenes…” with Senators to gain EFCA’s passage.

Bill Samuel, the AFL-CIO’s legislative director, has spoken of a “compromise” where fast elections and majority sign up recognition under certain circumstances would be appropriate.

Labor Secretary Hilda Solis spoke strongly in favor of EFCA during her AFL-CIO convention speech.

Senate Majority Leader Harry Reid (D-NV), who a few weeks ago, said EFCA would not come up this year, told the union convention by video feed that he wants to pass EFCA “swiftly”.

Richard Trumka, citing the need for more aggressive Labor leadership, including the passage of EFCA, has proclaimed that “we need to be a labor movement that stands by our friends, punishes its enemies, and challenges those who, well, can’t seem to decide which side they’re on….”

In addition, there are a handful of Democratic senators who are not sure “which side they’re on,” but covet Labor support, or at least its neutrality, as they stand for re-election.

Then there is the empty Senate seat – from Massachusetts. We don’t know whether an appointed or elected candidate will take Senator Kennedy’s seat. The outcome of that issue in Massachusetts has a direct impact on when EFCA will be considered. Even under the most favorable circumstances, without Senator Kennedy, it is difficult to see how Labor can get to 60 senate votes for EFCA, even in its “lite” variety, and no matter what the “compromise” contains. But whenever Massachusetts again has two senators, EFCA will be ripe for serious consideration…..provided, of course, Senator Robert Byrd (D-WV) is healthy enough to come to the Senate and vote for EFCA.

“Every vote counts” may never have been more true.
 

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This article received contributions from all of the EFCA & Labor Law Reform Blog authors.

U.S. Senator Arlen Specter (D-PA) pulled the curtains off of his revised version of the Employee Free Choice Act during the September 15 session of the AFL-CIO convention. He announced that his version, which he claims will “be totally satisfactory to labor,” will pass Congress this year.

Specter’s version of EFCA does not include the “card check” provision of the original EFCA bill. That provision would require the Labor Board to certify a union anytime it receives signed cards from a simple majority of eligible voters—thus, effectively eliminating the secret ballot election. Instead, Specter would provide for “quickie elections” where the time between the filing of a petition and the date an election is held is reduced significantly from the current period of about 42 days. Specter has not yet disclosed the exact length of time his bill would establish. Some have said it could be less than 15 days. Additionally, the Specter bill would give unions the right to access an employer’s facility if an employer holds mandatory meetings regarding the union election on company time. Specter’s EFCA also would increase employer liability for violations of the National Labor Relations Act to an amount triple that which the Act currently provides.

The mandatory interest arbitration also is revised. The Specter bill still calls for mandatory arbitration for first contracts, but frames the process as “baseball style” arbitration. Under this process, the arbitrator reviews the “last best offer” from the employer and the union and chooses one. Don’t let the term “baseball arbitration” conjure up positive images of America’s pastime. Baseball style arbitration is nothing more than a form of interest arbitration where terms and conditions of employment unacceptable to the owner of a business are imposed upon that employer by a government arbitrator.

Interestingly, during the convention, Senator Specter seemed to imply that incoming AFL-CIO president, Richard Trumka, signed off on his new EFCA bill. However, Trumka has vigorously denied this and insists that the full and original version of EFCA is still on the table and is the version of the bill that he demands be passed.

Let us know your thoughts.

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Today marks the first day of the AFL-CIO’s quadrennial convention in Pittsburgh. More than 1,000 delegates are expected to be in attendance. They will have their hands full with a packed agenda that includes electing new officers, setting priorities for the federation and debating health care reform, job safety, green jobs, immigration, and the economic crisis, among others. The convention also will be the stage for some top-shelf speakers, including President Barack Obama, Secretary of Labor Hilda Solis, Senator Arlen Specter (D-PA), Speaker of the House Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV). Outgoing AFL-CIO President, John Sweeney spoke to the delegates on September 13. Each attendee will receive a copy of a report (pdf) discussing the state of the federation and some of the major events that have occurred during the last four years.

Candidates for the federation’s three top offices are running unopposed. It is widely expected that Richard Trumka, the federation’s Secretary-Treasurer, will be elected President. Elizabeth Shuler, executive assistant to the president of the IBEW, is running for Secretary-Treasurer, and Arlene Holt Baker, the federation’s Executive Vice President is running for re-election to the same post.

Each day of the week-long convention will have its own theme. Day One will focus on organizing and politics. It is expected that the federation’s top legislative priority, the passage of EFCA, will be discussed. 

The second day is devoted to debate surrounding health care reform and will include an address by President Obama. 

The third day’s theme is “the power of many” and will focus on diversity, civil and human rights. 

On the last day, the delegates will set the goals for the international union movement towards the G-20 summit coming to Pittsburgh later this month.

Two people are notably absent from the gathering. One is Andy Stern, who just last week saw the Carpenter’s Union withdraw from his Change to Win Coalition. It will be interesting to see how much time, if any, is spent by the AFL leadership on bringing the labor movement together and if they extend any olive branches to Mr. Stern. Similarly, it will be interesting to see if Mr. Stern goes out of his way to recognize Mr. Sweeney for his past leadership and to congratulate Mr. Trumka as he takes the reins of the AFL-CIO. 

The other absent party is Senator Tom Harkin (D-IA). Will the Convention go out of its way to congratulate and recognize Senator Harkin for his new position as chair of the Senate HELP committee and what will his reaction be to the EFCA discussions?

The key to the convention’s impact on EFCA will be how firmly the President supports some version of the bill. The same goes for Arlen Specter, who is such a crucial part of the labor reform debate. It will be interesting to see if any of the speakers discuss the composition of the current Labor Board and the Obama nominees.

As always, we will keep you posted … stay tuned.

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