The NLRB in the Non-Union Setting: Making A Point

For years I have been a member of seminar planning committees, and inevitably the talk gets round to an NLRA topic. In Texas, that usually meets groans and comments to the effect that no one is really interested because very few practitioners actually deal with union related matters.

Inevitably, one solution was to title the program slot, something along the lines, The NLRA for the Non-union Company. And while that often at least made the program, it was still hard to generate much enthusiasm.

However, the current Board seems intent on getting out the message that indeed concerted activity, not just union activity, is what is protected, including today's launch of a web page describing Protected Concerted Activity, complete with state by state links to cases where the Board has found such activity.

For example, clicking that link and the button located prominently in Texas, pulls up 16-CA-025349:

A supervisor at a dental association was fired after she refused to divulge the names of employees who had anonymously signed a petition protesting top management. The Board found the discharge was unlawful because she had rightfully refused to violate federal labor law by punishing concerted activity. In a settlement, the supervisor and another former employee waived reinstatement in exchange for $900,000 in lost wages and benefits.

It will not take too many stories of that nature to get the word out.

That's a far cry from what life was back in the late 1970's and early 1980's. I can't remember the exact date, but I was in the San Antonio office of the NLRB waiting to see some one and the phone rang.  The secretary answered the phone, and sitting right across from her I could tell that it was an employee calling with a possible complaint. After listening a moment, she asked, "Is there a union involved?" and obviously getting a negative response, hung up the phone with a "Well, we only handle matters where there are unions."

Oh how times have changed.



Thinking About A Different World Under the NLRA

I have been quite busy lately but finally began catching up on some past reading and one of the first things was the most recent edition of the ABA Journal of Labor and Employment Law, Fall 2011, and its first article, Imagine a World Where Employers are Required To Bargain with Minority Unions by Catherine Fisk and Xenia Tashlitsky.

Professor Charlie Morris' book advocating for minority member bargaining, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, remains only partially read on my bookshelf.  So, I was quite interested to see what another academic would have to say about an intellectually challenging idea, one that would clearly turn the world of labor relations on its head from anything that I have known in the now more than 35 years I have been practicing.

It is not altogether an academic question given that there are currently requests filed with the Board for such a rule making endeavor, and a Board that has shown its willingness to engage in rule making far more than in the past.

But what was clear from the article is just how complex an issue it really is. It is clear that Professor Fisk and her student co-author, clearly are intrigued by the idea, but intellectually honest enough to realize (and point out) just how many other questions it would raise, and how incomplete the data is that we would need to resolve those questions.

Their view is that the proper approach  should not be whether or not bargaining with a minority union is legally mandated, but whether or not it makes sense from a policy viewpoint. They believe it is clear that it would be a permissible reading of the NLRA, but that by no means does that answer whether it would be the wise course.

For anyone looking for a simple solution to current problems in the world of labor relations, even a cursory review of the questions that the authors raise should be enough to make clear that mandating minority bargaining is not a panacea.

They end by concluding that  NLRB rule-making on the subject would be worthwhile, but more for the process of a full exploration of a novel idea than as a foregone conclusion that we should end up with such a rule. Their words are more eloquent than mine:

"while one part of the benefit of any legislative process, whether through legislative enactment or agency rulemaking is judged by the rules that are adopted, another part of the value is the process itself.  All the stakeholders in the labor law world would benefit if the NLRB were to conduct rigorous study of this important policy question and offer substantive reasons for its decision to issue or reject a rule."

In one more burst of candor, they admit that in today's partisan atmosphere, it is highly unlikely that the Board will undertake such a review. My two cents, in this highly partisan atmosphere, the Board should not.

That doesn't address the bigger question however. A review of serious policy issues, in the world of labor and employment law, as in other areas of the body politic, are necessary from time to time, and as long as we remain paralyzed by our increasing political divide, problems that need addressing with wisdom and compromise, remain far from our reach.

It's not good for the world of labor and employment law, or for the bigger political world in which labor and employment law is just our narrow corner.

Coming to a Bulletin Board Near You on November 14th, Or Maybe Not ...

On planning committees for seminars, one topic that inevitably gets discussed is that we need to cover some traditional labor law. Almost inevitably someone will point out that in Texas, very few employers have unions and so any discussion of the NLRA or the actions of the NLRB will no doubt turn off a large part off the audience. And that of course, always gets the suggestion -- let's emphasize that the NLRA covers "concerted activity" not just union activity.

All true, true, and true. In fact my very first 5th Circuit argument was just such a case, NLRB v. Datapoint (5th Cir. 1981).

But unless a suit filed by the NAM, or some other similar action is successful, this November 4th, this poster, in its final formatted version that was published by the NLRB today will grace the bulletin board of every employer covered by the NLRA regardless of whether or not they currently have a union, as of November 14th.

This was the result of rule making on the part of the Board, a technique rarely used in the past.

In addition to a list of things that are illegal for either an employer or a union to do, the poster provides the following information:

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union. 

One view of postings is that they are much like the warning on the side of a lawnmower that you should not stick your hands into the blades, they are so ubiquitous that no one pays any attention.

But one never knows, although it may well be that we will soon find out.

A hat tip to Jeffrey Hirsch at Workplace Prof Blog, who was the first to call to my attention that the final version, in his words, "suitable for framing" was now released, although he gives his own hat tip and cautionary warning.

Update: Thanks to Russell Samson at the Dickinson Law Firm in Des Moines for catching that I was trying to force posting 10 days earlier than required. The effective date of the new rules which require the posting is 75 days after they were released or November 14, 2011.  The Board's equivalent of an FAQ on the new posting requirement (which confirms the correct date) is here.

Labor Day, A Day After - Should We Put This To A Vote?

Any thoughts on how the following legislative finding might fare in today's Congress?

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

And if we wanted a second proposition to vote on, does the following stand up?

The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.

I think the answer is self-evident. The chances of passage of either is nil.

Still they do currently reflect what is the stated policy of the United States as contained in the existing National Labor Relations Act.

I hate to add to the burdens of our already strained political system, which quite frankly does not look as if it can solve any of its too many pressing problems, but at some point, we need to come to a concensus on what we want our labor policy to be.

For too long now, the political attention paid to the NLRB has been one of neglect and acceptance of the fact that with each political turn we should anticipate the wholesale reversal of "established" law. That has happened with the Obama Board, as it happened with the Bush Boards, as it happened with the Clinton Board etc.

When you can't agree on what the policy should be, it is ludicrous to think that the current one is apt to be successfully implemented.

Regrettably, I think that is something all should be able to agree on.

The Future of Unions: A Key Question

BNA's Daily Labor Report ($) has an article based on its in depth interview with the soon to be former head of the SEIU, Andy Stern, that is well worth the read. See, As Retirement Nears, SEIU's Stern Says Shift in Work Processes Top Issue Facing Unions.

The money quote for me:

Are there different ways workers can be successful in the 21st century in addition to unions or a different role for unions in the 21st century?

Regardless of how you feel about him, Stern has to be viewed as one of the more innovative leaders of the union movement, certainly in my career (and this week end is my 35th year law school reunion).

Although my practice has been much more oriented to employment than labor law, as an interested and somewhat better informed observer than many, that sentence says succinctly what I have thought about unions for a long time.

I believe unions have not adapted to the changing world as fast as needed. In what is a gross over-simplification, unions are operating on a blue collar model in what has increasingly become a white collar workplace; a world where a career is marked by multiple jobs and even free lance type assignments from multiple companies, not one job with one company for your working life.

One could quibble and suggest that by assuming, not questioning, that there is a continuing role for unions that Stern may not be really getting to the ultimate core of the issue. That could well be merely semantics and saying it that bluntly could hardly be expected of someone who has spent his life in the organized labor movement.

Stern hopes to find a spot at a university or other organization to think about things that he didn't have time to do as he was meeting the daily duties of running a large organization.

It will be interesting to see what thoughts and/or actions emanate from Stern's reflections. The common wisdom would be that whatever it is, it will be strenuously opposed by the business community. But his underlying point is a good one:

 If you want to have a middle class in America there has to be some way for workers to share in the gains, not just share in the pain.

While it might well be that I would disagree with the conclusions that Stern, and whatever group he gathers arounds him, reaches, I am glad to see someone with his experience embarking on the journey.

He has posed the right question.  I wish him well.

MDV with a Twist: Union v. Union

A San Francisco jury has just returned a verdict in a lawsuit brought by the SEIU against a rival union, the National Union of Healthcare Workers. This is the next step in what has been a long battle between the SEIU and the faction that that broke away from it to form a new union. For some of the background, check out A Battle for Labor's Future by Dan Clawson which was published in Z Magazine in June, 2009.

BeyondChron writer Randy Shaw, in his own words, "rushed right from the courtroom to get out this story, and some of my numbers on the verdicts may be slightly off," on story that is headlined, BREAKING: SEIU Wins $1.5 Million Verdict in Trial Against NUHW.

I have not followed this internecine fight, but from the tone of Shaw's article it seems he is taking the NUHW side. Noting that the $1.5 million was far less than the $25 million SEIU sought, he also takes the view that the suit had four purposes and perhaps the strongest reason was merely personal. He thinks the suit failed in that goal. With respect to the other three goals he attributes to the SEIU for this litigation, he had this to say:

The first three [goals] were to deplete NUHW resources by forcing its leaders to spend time and money defending themselves, send a message to hospital and home care workers facing elections that NUHW cannot not be trusted, and turn the Rosselli leadership team into a cautionary example for other SEIU locals that are considering publicly questioning President Stern’s agenda. None of these goals were achieved by the verdict.

First, NUHW has far more organizing resources today than at any point since the trusteeship began. NUHW’s organizing was not impeded by the trial. Second, the verdicts say nothing about workers not being able to trust NUHW. To the contrary, the verdicts punished former SEIU-UHW leaders for providing too much loyalty to members. Had NUHW leaders gone along with the transfer of home health care workers out of the local without a vote, the trusteeship would not have been imposed and many would not have jury awards against them today.

Significantly, Sal Rosselli, long described by SEIU as the leader who single-handedly pushed SEIU-UHW over the edge, did not get an award much larger against him than the others (the award against Rosselli was $70,600, Borsos, Lewis, Martin was $66,600, Goldstein $73,850, with Cornejo and others at $36,600. Paul Kumar won a defense verdict). Third, as for the lawsuit deterring internal SEIU criticism, since the lawsuit began two major SEIU locals -- 888 in Boston and 1021 in the San Francisco Bay Area -- have elected reform slates.

His view of the real winner from the case is also interesting:

The chief beneficiary of this trial is likely to be hospital owners USC University Hospital in East Los Angeles, who will use the jury verdict as part of their ongoing strategy to convince workers to vote for “no union.” Management will not only make the case that an independent jury has confirmed that workers cannot trust NUHW’s leadership to protect members, but will also argue that workers should avoid being caught in the middle of inter-union disputes so rancorous that they end up in federal court.

Rarely do parties say nice things about each other during the heat of litigation and it does seem quite likely that testimony taken from this trial is apt to appear in future union campaigns.

Update (4.12.10): Thanks to Rick Bales at Workplace Prof Blog for picking up that Randy Shaw has revised his story to indicate that the collectible verdict will be not quite 3/4 of an MDV as reflected in his revised story, which the above link should still reach.  Of course, verdicts are just a jury's answer and the real number doesn't appear until the Court enters a judgment after consideration post-trial motions.

It's Here: The Obama Board

Although it took longer than expected, and required using the recess appointment mechanism, Saturday's expected announcement that Craig Becker and Mark Pearce would be appointed to the Board marks the transition to an Obama majority on the NLRB. President Obama Announces Recess Appointments to Key Administration Positions. The fifth potential member, Republican Bryan Hayes'nomination is still pending in the Senate (the Becker and Pearce nominations remain as well.)

Also on the list of the 15 recess appointments are three members of the EEOC, Jaqueline A. Berrien as Chair, Chai R. Feldblum and Victoria A. Lipnic as members. P. David Lopez  receives a recess appointment as General Counsel. Of those, Feldblum was the one who had drawn the most attention.

Because these recess appointments will expire when the Senate adjourns in December, 2011, it will be interesting to see how quickly they begin acting. Given the length of time the Board has been operating with only two members, and thus deciding only those cases where Democratic and Republican members could agree, there is a substantial backlog of cases to be decided. Additionally, there has been much talk about the possibility of rule making to accomplish at least some of the objectives of the legislatively stalled Employee Free Choice Act.

As a reminder of some of the changes that could be coming check out the monograph prepared by two of my colleagues, Hal and Chris Coxson, The National Labor Relations Board in the Obama Administration: What Changes to Expect.

If you had put off getting up to speed about what would happen with an Obama Board, time is up. For better or worse, it is here.

Tired of Card Check, Rapid Elections? Harv Prof Offers a Different Approach

Benjamin I. Sachs, an Assistant Professor of Law at Harvard has a recent Harvard Law Review article evaluating card check and rapid elections, and suggesting that neither is the optimal approach. Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing.

Before employers get excited that there is yet another potential academic convert to the anti-EFCA movement, it would be helpful to note a couple of items in Professor Sachs' resume -- a clerkship with Judge Reinhardt of the 9th Circuit and a stint in the legal counsel's office of the SEIU.

Given that background it is not surprising that he finds:

The central question raised by EFCA, therefore, is whether enabling employees to limit or avoid managerial intervention in union campaigns is an appropriate goal for federal law. This Article answers this foundational question in the affirmative.

His two proposed solutions would keep secret ballots, but would both require a process of continuous voting that would be conducted without the employer explicitly being told that an election was in process.

While, those ideas are radically different from the current method, if you pose and answer the "central question" as Professor Sachs does, they do follow.

And although there could be much interesting discussion about those suggestions, Professor Sachs, may really, intentionally or not, have raised the real elephant in the room:

What is the policy of the United States with respect to unionization of the work place?

Some would argue that the policy is clearly articulated in §151(d) of the National Labor Relations Act :

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. (emphasis added)

In other words, a pro-union position. But, I think many would be surprised to hear that was the official U.S. policy, and would believe, if it were in fact true, that the real question should be:

What should the policy of the United States be with respect to unionization of the workplace?

Is the answer the same as when the Wagner Act was adopted in 1935, or even when it was modified by the Taft-Hartley Act of 1947? 

EFCA, although discussed in terms of procedure, is really just the most recent proxy fight about that basic question.

For me, the next question becomes:  Is it time to address that issue squarely?

In this era when there seems to so little hope of consensus on any controversial issue, it does not seem that it would be particularly helpful.

Still, just because it is a difficult question, does not mean that it does not exist.

Foreign Labor Unrest and the Future Here at Home

The M.P. Catherwood Library of the Cornell School of Industrial & Labor Relations has a service, Workplace Issues Today, that I receive daily. It's a good way to keep up with developments.

I was struck by the three entry's in today's email:

• FRENCH OIL WORKERS PROTEST SHUTDOWN, a dispute with Total SA;
• SPANISH WORKERS PROTEST RAISING RETIREMENT AGE,  a protest against a proposed raise in the retirement age and a proposal to reform labor laws; and
• UNITE WORKERS VOTE TO STRIKE, reporting that over 80% of the members of the union which represents cabin crews at British Airways have voted to strike, although negotiations continue.

Although on global labor issues, I am no more than a casual observer, there seems to be no question that the labor movement in other countries is more entrenched than in the U.S.

Over the almost 35 years that I have been working in the field, the U.S. labor movement in terms of percentage of the private sector that is unionized, has been on a long downhill slide, reaching its lowest point ever this year. Although I am by no means suggesting one way or another a correlation, over the same period it seems to me that, with occasional almost abberational actions, labor's primary thrust has been political, not ground level organizing.

Anyone who thinks that they know what the future of politics in America is going to be this time next year, much less over the longer haul, is certainly more confident of their abilities than I would be. Still, you would have to think that among those in organized labor there is a re-thinking of their approach, since this time last year, it would seem that they had finally achieved a political breakthrough. A Democratic White House and Congress and one vote away from a filibuster proof Congress, and even that vote appeared shortly, when Senator Specter of Pennsylvania switched parties.

Now the filibuster proof Congress has gone with the loss of Ted Kennedy's seat and from a legislative standpoint, none of the goals have been achieved. It is the second time in my career that unions were narrowly turned away from a significant change in labor policy that would have provided substantial aid in organizing.

The third time may be the charm, although many will wonder if that takes another 30 plus years, whether organized labor will make it that long.

There of course is still a lot that can be accomplished both by the White House and by administrative action, particularly the NLRB, although even there, labor has been at least temporarily frustrated in getting appointments they have sought through the confirmation process.

If reports from the ground are any indication, labor organizing is picking up as political hopes have waned. That would seem to be a logical response. Combined with an uneasiness about the future, which obviously is not contained to the U.S., and looking at what appears to be a stone wall on the the legislative front, I would expect to see traditional labor law reflect more organizing, although perhaps a modernized version to deal with a changed workforce. It would be hard to argue that this might not be a fertile time.

Some of my colleagues who spend most of their time on traditional labor law are of the same mind and will be discussing the changing perspectives in a seminar next month in DC, It's Not Your Father's Union Campaign III .

No Becker Recess Appointment, At Least Not This Recess

Or at least that would seem to be the most likely course of action based on a statement released by President Obama after the Senate confirmed 27 appointments by voice vote before leaving for the week long's President's Day Holiday. Senate Confirms 27 Obama Nominees . From the White House:

While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess. If they do not act, I reserve the right to use my recess appointment authority in the future.

Although I could have easily missed someone, it appears that the only labor and employment related appointment in the group confirmed was Cynthia L. Attwood, of Virginia, as a member of the Occupational Safety and Health Review Commission.

Becker Nomination Back in Senate's Hands

As had been widely reported would happen, the President has re-nominated Craig Becker to be a member of the National Labor Relations Board. Presidential Nominations Sent to the Senate | The White House In light of Tuesday's election results it will be interesting to see what happens.

Although getting a controversial nominee through Congress is not easy, and Becker is clearly controversial, it still remains easier than passing legislation such as EFCA or health care. I would not be surprised to see the White House looking harder at ways to accomplish their goals that do not require Congressional action, such as regulations and executive orders. Although they have to get their nominees confirmed for regulations to occur, it may well be they begin using some of their political capital on the confirmation process rather than new legislation.

Hat tip to Jeff Hirsch at Workplace Prof Blog who somehow managed to take time away from the other UT's athletic turmoil to keep us informed of this development, Becker Renominated. (and he hat tipped Justin Keith).

As Professor Hirsch correctly points out: "Let the fun begin ... again.

Board Member Becker? 2nd Time Around

According to the New York Times, President Obama is going to renominate a number of individuals that the Senate returned to the White House at the end of the first session of this Congress. Included in that group is Craig Becker to the NLRB. President Is Said to Decide to Renominate Six Choices.

Hat tip to a tweet from Ross Runkel, who nailed it, when he said at a minimum this means a delay in getting a full Board.

One the "can 2 members act" question, the Court has set that case for oral argument on March 23rd. Supreme Court to Hear Oral Arguments in New Process Steel on March 23.

Even if the Board gets the go ahead from the Supreme Court, that does not mean that the Board will really be able to function in any but a very limited way. Although for employers who are not looking forward to some of the rulings likely to come from an Obama Board it may be a good thing in the short term, in the long run, it seems to me that the way the Board has become just another vehicle for partisan fighting (and this goes back long enough to catch administrations and Congresses of all political persuasions) is not a good thing. There should be a better way.

Latest on NLRB Nominees

Jeffrey Hirsch at Workplace Prof Blog has the latest development on the nomination that is holding up the confirmation that would bring the NLRB to full strength (5 members) and make it officially an "Obama Board." The nomination of Craig Becker, a lawyer for the SEIU, has been "returned to the White House," according to some post-Christmas reporting, Becker's Nomination "Referred Back" to White House.

Hirsch doesn't know exactly what this means, nor do I, but it can't be a happy thing for organized labor, or Obama. As he also notes, it could turn what would have been an academic question, whether a 2 member Board can operate in the absence of a three member quorum, into something much more important. That case is currently pending before the Supreme Court.

Even if the 2 member power is upheld, at this particular time it really won't matter, since the two current members, who were nominated by Presidents of different parties, only act when they are in agreement, which means nothing too controversial is likely to occur until something gives on the appointment to the three vacancies.

Update: NAM's Shopwatch story from yesterday has even more details about the action. See, Senate to President: Reconsider NLRB Nominee.

Can the NLRB Function With 2 Members?

Well obviously only in a very limited manner, and according to the DC Circuit, not at all. Three Circuits, the 1st, 2nd and 7th say it can, and now the Supremes will tell us. Justices to decide validity of two-member NLRB decisions.

Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker. NLRB Nominee Gets Mixed News From Senators My understanding is that Senator Harkin will not submit the other two candidates for a full Senate vote until a resolution is reached over Becker.

I assume that there is some way that this will all get worked out under the curious protocols of the Senate. It does seem to me though that an outsider looking at the whole way we deal with the NLRB membership, including long periods of time with less than a full Board, and the way that precedent is an almost non-existent concept even when we have a functioning Board, would have to say that it's not much way to run a railroad.

For some insight into just how the Senate nomination process works (or doesn't) check out, Fractured Nomination Process Leaves Regulatory Posts Vacant.

The Obama Board - EFCA Is By No Means the Whole Deal

The Employee Free Choice Act has certainly garnered the majority of ink and/or pixels in discussions about the possible changes in the law of labor relations, but it is by no means the only change on the horizon. In fact, as has now become abundantly clear, EFCA is subject to the vagaries of the legislative process which is biased in favor of doing nothing. What form of legislation, if any, can pass remains a very open question.

One other question however was decided on the night of November 4, 2008. When President Obama was elected it was certain that within some period of time there would be an Obama National Labor Relations Board. Currently the Board is operating with two members, but three others have been nominated and when they are confirmed, there will be a 3-2 Democratic majority.

For a look into what that may mean, two of my Ogletree Deakins colleagues, the father/son duo of Hal and Chris Coxson, have prepared a monograph for the U.S. Chamber of Commerce, The National Labor Relations Board in The Obama Administration: What Changes to Expect.

According to the Chamber's press release announcing the report:

The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration. The vast majority of this analysis is focused on cases decided by the Board in recent years that Democratic Members of the Board dissented to and that organized labor has criticized. While some of these cases are high profile, such as the Board’s decision in Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law’s secret ballot process for union recognition, others are much less well known. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations.

In addition to the changes to existing precedent, it is also possible that for the first time since the 1974 rules relating to health care institutions, the Board may engage in substantive rule making.

You can download the full report from Chamber's website [pdf]. Happy reading.

Did Kennedy's Illness Prevent EFCA Passage?

That seems to be what Senator Harkin was saying in yesterday's report in The Hill,Harkin: Kennedy’s illness stopped card-check vote back in July. According to the story, Harkin had an agreement supported by organized labor and with Kennedy would have had the 60 votes, but Kennedy was too ill to come to capital hill to vote.

The details of that agreement according to Harkin: "I will not say because it was closely held, it never leaked out and it still hasn’t." No kidding.

That EFCA was ever that close to actual passage would be a shocker. While I obviously don't know, something about it just does not ring true. And I am not the only one who wonders, Card Check: Harkin Then, Harkin Now.

Senator Harkin and the Secret Ballot

Although it does not look like that the card check provisions which would effectively eliminate the secret ballot for determining union representation will survive, at least in any EFCA type bill passed by this Congress, there is still some irony in the comments of Democratic Senator Tom Harkin, who is leading the push for the bill in making the following comment about his fellow Democratic Senator:

“Every two years the caucus could have a secret ballot on whether a chairman should continue, yes or no,” said Sen. Tom Harkin (D-Iowa), the chairman of the Senate Agriculture Committee. “If the ‘no’s win, [the chairman’s] out. “I’ve heard it talked about before,” he added."

The chairman who might be ousted by such a secret ballot election is Max Baucus, D-Montana who is cross-wise with Harkin on the details of the healthcare plan, according to the article in The Hill, Dems warn Baucus with gavel threat.

Apparently what's good for the goose is not necessarily good for the gander.

EFCA - The Aftermath of a Compromise

Although last week's NYT story announcing a compromise had been reached to drop the card check portion of EFCA has turned out to be either a trial balloon, a non-event or premature, depending on who you listen to, it has been interesting to see the reaction by advocates on both sides.

The business community has been quick to point out that a killer provision, binding arbitration, remains, which means there can be no compromise. Many union activists are seeing the loss of card check as the end of the line.

Adam Turl, writing in the Dissident Voice is in that camp, but has a somewhat more nuanced view. He acknowledges that EFCA, even without card check could be a significant victory for labor, but doesn't see it in the cards:

However, since Democrats already gave away card check without a fight, there is little reason to believe they will mount a vigorous defense of the compromised EFCA when the Republicans move in to destroy what remains.

Who killed EFCA?

From my perspective it is far too early for anyone to be performing autopsies on the failed EFCA, but Mr. Turl has some very insights into what has been going on behind the scenes by those who would like to see it passed.

EFCA --- Compromise a Done Deal?

The New York Times, Democrats Cut Labor Provision Unions Sought, is reporting that a compromise that drops card check in return for 5 day quickie elections now has the support of 60 senators, enough to ensure passage. Although all details are not being released, the hint is that binding arbitration is still included and there may also be equal access provisions to allow unions to campaign on an employer's premises.

If this pans out, it will be by far the most dramatic change in labor law since I took Professor Jerre Williams labor law course at the University of Texas Law School in the fall of 1973. And if it does include binding arbitration for first contracts, it will be a total revamping of the underlying principles of American labor law. Unfortunately, the last part has received relatively little attention.

One of the most interesting aspects is the immediate reaction of some from organized labor. Jonathan Tasini, who is a passionate advocate for employees at his Working Life blog is disgusted:

"Card check" was the the thing that the bill was about--or so we heard for lo these many months. Now, it's left to the labor movement to explain why what will be left is good enough. That will be an interesting exercise.

We could also admit two things. One, when it comes right down to it, the kind of people labor supports in the Democratic Party are not reliable when it comes down to a fight-or-die moment for workers. Second, the strategy to pass the bill was an insiders game that never engaged the public, partly because we left the campaign in the hands of some people who are entirely clueless about talking to anyone but themselves.

Another option is for some people in the labor movement to decide that maybe it's worth saying, "to hell with you all" and come up with a better organizing and political strategy that does not rest on relying on people who will sell us out in a heart beat.

So Much for the 'Card Check Bill.'

More interesting to me was a 'tweet' from SEIU President Andy Stern, "we expect a vote in the bill or by amendment on majority sign-up in both houses of Congress." EFCA Compromise? at TPM, which follows that "clearly this compromise won't go down without several spoons full of sugar. "

The fact that Stern, who clearly knows the political reality, is making such a comment brings out the cynical fear that what is happening is what many in the business community feared all along. Card check was a stalking horse all along. The rejection of card check is going to be pitched as standing up to organized labor, and to aid in that perception many in organized labor (who secretly are ecstatic with what now seems within their grasp) berate the Democrats for selling them out.

Feeling victory based on the outcry of their opponents, many in the business community whose opposition was focused primarily on the card check provision will think that their mission has been accomplished and turn to other matters.

And almost under the radar, American labor law will be fundamentally changed.

The other thing that adds fuel to that thought is organized labor's desire to have a vote this month. Senate leaders are apparently of the opinion that it can't be done until September. (I am not quite sure why the Senate would want to undergo two more months of battering on this issue, because if they think its been hot up till now, they have not seen anything yet.) If no vote is scheduled until September then it might all come unraveled even if on this particular day in July the votes are there.

Because this is literally about how the American workplace functions, all with an interest, should stay very much engaged.

Oregon Statute Could Bar Captive Audience Speeches in Union Campaigns

Last Friday, the Oregon House passed SB 519 a bill that was passed earlier this month by the Oregon Senate. As passed, the bill would preclude an employer from mandating that an employee attend certain meetings.

The bill prohibits:

An employer or the employer's agent,representative or designee may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee:

(a) Who declines to attend or participate in an employer-sponsored meeting or communication with the employer or the agent, representative or designee of the employer if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters;

and political matters:

includes political party affiliation, campaigns for legislation or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group or activity.

And to round it out, constituent group or activity, includes:

but is not limited to, civic associations, community groups, social clubs and mutual benefit alliances, including labor organizations.

Net result, if it should ever come to pass, a major impact on union organizing campaigns as traditionally run.

Still, the "could" in the headline deserves heavy emphasis. Before this bill allows the first employee to skip a scheduled meeting, it must be signed into law by Oregon's Gov. Ted Kulongoski. According to an AFL-CIO website, at least before its final passage, the Governor had said he would sign the bill. Oregon Bill Bans Mandatory Meetings.

The second big hurdle is the anticipated litigation that this statute is pre-empted by the National Labor Relations Act and/or that it is unconstitutional. My guess is both arguments are formidable, but it will take some time for them to play out.

Although it is not generally expressed in exactly these terms, for purposes of labor and employment law in America the fundamental principle is that "jobs" have belonged to the employer. This Oregon statute may only be a "left coast" thing, or it could be a sign that we may are approaching a major shift from "jobs" belonging to the employer, to "jobs" belonging to those who hold them.

Whether you think that is a good thing or a bad thing, it should not be overlooked that such change would be of epic proportion.