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

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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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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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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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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Labor advocates often refer to recent union “studies” as support for labor law reform. These, as it turns out, “lack sufficient credibility and analytical vigor” to support their conclusions. This revelation is made in a newly-released White Paper, Responding to Union Rhetoric: The Reality of the American Workplace, published by the U.S. Chamber of Commerce. 

The Chamber notes the following:

1.       The pro-union “studies” are sponsored by biased organizations, like American Rights At Work, which received $2.3 million from the AFL-CIO and its affiliates in 2008;

2.       The pro-union authors of the “studies” receive money directly from unions, such as one who was paid $62,472 from the SEIU in 2005;

3.       The source of the “facts” used are almost exclusively from union organizations not exactly known for objectivity;

4.       The use of NLRB statistics by the proponents often are based on accusations and not findings established after evidentiary after hearings or trials;

5.       The “studies” ignore other, more credible, sources of objective information, such as Zogby and Rasmussen polls.

 For those truly interested in a factual basis to support or not support labor law changes, the Chamber’s White Paper is indispensible.

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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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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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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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