EFCA - Post Specter Announcement

Two days after Senator Specter took to the Senate Floor to announce his opposition to EFCA, the best post I have seen on what exactly this means is from Campaign Diaries, Specter announces opposition to EFCA.

Among the possibilities, some sort of compromise with four Republicans being eyed as potential votes for cloture: Lisa Murkowski (Alaska); Olympia Snowe and Susan Collins (Maine) and George Voinovich (Ohio). Voinovich is not running for re-election. And of course, Specter did leave the door open to change his mind, perhaps after the Republican primary in the Spring of 2010.

Another possibility is for Labor to see if the Democrats can finally broach the 60 seat barrier in 2010 which could result in a non-watered down version.

My guess, there is still likely to be a strong run at some sort of compromise in the current Congress. (Of course I also picked Wake Forest for the Final Four in at least one of my brackets!)

Gearing Up for Tougher Wage & Hour Enforcement from DOL

Although given all the FLSA collective actions that have been directed at employers, it would be somewhat foolish to argue that the last few years have been easy, it is clear that a new administration, means likely much tougher enforcement by the DOL.

And although Secretary Solis probably did not need anything to jump start that activity, in case she did, the GAO report on enforcement efforts in the recent past no doubt will serve that purpose. The report to Congress, neutrally entitled, is Wage and Hour Division's Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft.

Some high (or more accurately) low lights:

GAO’s overall assessment of the WHD complaint intake, conciliation, and investigation processes found an ineffective system that discourages wage theft complaints. With respect to conciliations, GAO found that WHD does not fully investigate these types of complaints or compel employers to pay. In addition, a WHD policy instructed many offices not to record unsuccessful conciliations in its database, making WHD appear better at resolving conciliations than it actually is. WHD’s investigations were frequently delayed by months or years, but once complaints were recorded in WHD’s database and assigned as a case to an investigator, they were often adequately investigated.

Secretary of Labor Solis' response can be found here. One key point, 250 new wage and hour investigators are on the way.

Specter Won't Be the 60th Vote

As the only Republican Senator to have supported EFCA in the prior Congress, Arlen Specter of Pennsylvania has literally been on the hot seat over the bill since a straight partisan vote would have left it one vote short.

In a Senate floor speech this afternoon, Specter called it "a very emotional issue" which may be one of the very few understatements about this piece of legislation given the heated rhetoric that has been coming from all sides. Politico has Specter's full statement at Specter deals a blow to EFCA.

Although he gives the door a pretty hard slam, Specter leaves a slight opening somewhere down the line:

The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.

I am sure organized labor's condemnations will soon start to roll in, but over at the Nation, the headline in the story by Chris Hayes probably sums it up, Specter Stabs Unions in the Back.

Update: Here's a link to Senator Specter's posting about his speech, including a video of him talking, which also includes some proposed changes to the NLRA that he would support. Whether there will be any traction to these proposals remains to be seen. On Sunday, it was Six Principles, today Senator Specter offers Twelve revisions:

1. Establishing a timetable: (a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union (b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension. (c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

2. Adding unfair labor practices: (a) an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign; (b) an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances; (c) an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.

3. Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired

4. Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign

5. Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service

6. On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.

7. Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith

8. Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;

9. Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.

10. I the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.

11. Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith

12. Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.

Texas Parking Lot Gun Bill Moves a Step Closer

S.B. 730, has been reported out of Committee favorably and placed on the intent calendar for today, which means it can now be considered by the full Texas Senate.

The Committee vote? Guns 7 - Sanity 0.

Update (3/26/09): The bill has now passed the Senate 31 - 0 and been sent to the House. A veteran lobbyist predicts passage at 99%. Hard to be against guns in Texas.

Solicitor of Labor Designee - M. Patricia Smith

Also overlooked during my Las Vegas stay was the announcement late Thursday of the Obama administration pick for Solicitor of Labor, New York Labor Commissioner Is Picked for Federal Job. M. Patricia Harris, is the current New York State Labor Commissioner.

For a little more background, see a bio for a program sponsored by the Center for American Progress Action Fund.

Although it's unlikely anyone would be thinking she would be a soft touch for business, but the following story, including a quote from Ms. Smith should belie anyone who did have such a thought:

New York State officials announced on Tuesday that they had shut down the Arthur Avenue Bakery — a Bronx institution celebrated for its cannoli and crusty bread — because of what they called widespread violations of minimum wage, overtime and workers’ compensation laws.

M. Patricia Smith, the state labor commissioner, said that new employees were often forced to work their first week without pay. She said that paychecks often bounced and that some workers complained about not being paid for 5 to 10 weeks.

“This is the first time I remember that we went in with the object of closing a business down,” Ms. Smith said in a telephone interview. “The employer was so abusive that we actually made the determination that it would be better for workers to lose their jobs than to continue working there.”

I don't know anything about the merits of that decision, but it is an interesting quote, that I am assuming would be asked about at the time of confirmation hearings.

Update (3/27/09): According to the NYT article, Bronx Bakery Owner Is Charged With Cheating Workers, the owner of the bakery mentioned above has now been arrested. According to the article, he has pled not guilty.

EFCA - Six Principles

While I was in Las Vegas for the LEAP Conference and watching the precarious status of my brackets (thanks a lot Wake Forest!), I was monitoring EFCA developments, but not posting. Fortunately, that saved me from posting "breaking news" on a new proposal by the CSW (Costco, Starbucks and Whole Foods, sometimes known as the Seattle to Austin connection) about their 70/50/30 proposal and the reaction to that as traitorous to the cause by many business groups who are active in the fight against EFCA.

Instead, as with most things about this proposed legislation, the story was more nuanced (or at least that is the latest spin). CSW are now identified as the founding members of a new ad hoc group, the “Committee for a Level Playing Field for Union Elections” and have put forth a proposal outlining certain principles that it thinks should guide EFCA. The spokesperson is Lanny Davis, late of the Clinton (Hillary) campaign and before that the Clinton Administration, and now a partner at Orrick, Herrington.

The Statement of Principles of Reform "Third Way" Legislation are:

(1) Secret Ballot. Guarantee the right of management and unions to require a secret ballot under all circumstances.

(2) Certification and Decertification Treated Equally. Permit management to initiate a decertification campaign through a secret ballot election just as employees and unions are presently able to initiate certification and decertification campaigns.

(3) Date Certain for Elections. Guarantee a fixed time period for the secret-ballot election—i.e., do not permit delays of an established day for a secret ballot to certify or decertify a union.

(4) Equal Access to Employees for Campaign Purposes. Level playing field for unions and management to access employees during non-working hours during the campaign period, e.g., permitting each to make presentations to employees at a neutral location concerning the issue of whether to form a union.

(5) Expedited Enforcement and Stricter Penalties. Expedited enforcement for serious and pervasive violations of law by labor and management and stricter penalties for serious and pervasive violations (e.g., unlawful discharges), including the penalty of mandatory injunctions when appropriate.

(6) Preserve Private Collective Bargaining. No mandatory arbitration that dictates contract terms, but stricter penalties and expedited enforcement for violations of good faith bargaining rules, including an expedited timetable to begin bargaining after union certification.

So far, the proposal has been met with a resounding "no" by both organized labor and the organized business opposition.

Still, Davis is quoted in the EarthTimes reprint (which seems the appropriate cite for the CSW coalition) of the Orrick Herrington press release as saying that he was met with support from the 20+ Senators he met with about the new principles.

Clearly this is going to be a difficult vote for the Senators and they are looking for ways out.

The 60th Vote for EFCA

Assuming that all Democrats vote for cloture, which at this point is very far from certain, the 60th and determining vote could be from Republican Senator Specter who already has crossed party lines to vote with the Obama administration to support the stimulus package. Because of internal Pennsylvania Republican politics, there has been tremendous speculation about his political future and how it may impact his vote. The latest from Daily Kos, PA-Sen: Specter inches closer to leaving the GOP.

Although saying he won't leave the Republican party, Specter now is openly raising the possibility of running as an Independent, a la Lieberman, but caucusing with the Republican party. He can't do it exactly as Lieberman did, since Pennsylvania has a sore loser law, so he would have to run as an independent rather than first trying (and losing) the Republican primary.

While the politics is fascinating, more important his how it will impact his vote on EFCA. To me, nothing about his situation makes it look more likely that he will change his position from last Congress and now vote against cloture.