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.

My Obligatory AIG Post

Feeling left out of the hottest topic in not only the blogosphere, but the world, the payment of AIG bonuses, I ran across this employment law related post from TPM that is ironic: 2003 Lawsuit Suggests AIG Wasn't Always So Careful To Honor Bonus Deals.

Others Agree -- It's the Arbitration That's Important (But Can't We Get the Facts Right On the Card Check Portion?)

Politico has an article by Jeanne Cummings today cautioning business about taking its initial surge in raising issues about EFCA too much to heart, Premature partying over 'card check'?

The money quote:

The suits seem nearly giddy over their apparent first-round public relations win against Big Labor over legislation expanding union organizing powers.

Instead as if channeling my earlier post, Cummings points out the real problem for business may well be the binding arbitration provision:

Under the legislation, if a contract isn’t reached within 120 days, the parties would be subjected to binding arbitration in which a federally appointed mediator would hammer out a two-year contract that both sides must accept.

For all the hoopla and advertising by businesses about protecting workers’ secret ballots, it’s this provision that worries many of them the most.

Their fear: a federal mediator with little knowledge of their business having the power to impose costly wage and benefit rules for years.

So far, though, business has only just begun to focus its public campaign on that section of the bill, and that delay could become a critical opening for labor.

Compromises are already floating on Capitol Hill — most of them focused on reworking the organizing provision, not the arbitration requirement.

Rather than either of us channeling the other, I think we were both just reporting on what anyone who is knowledgeable about the bill knows.

What I don't get is Cummings', or numerous other journalists, willingness to repeat a statement about the card check aspect of the bill that I think is just inaccurate. Here is what she says:

The legislation doesn’t prohibit the traditional process of elections and secret ballots. If a majority of workers want to proceed that way, they still could.

I know something about this, I have read the Act, and I think that statement is just wrong. I would appreciate Cummings, or anyone else for that mattter, explaining to me why it is a true statement.

As resource material, here is the complete text of S. 560 EFCA as introduced in the Senate.

This is the card check section, Streamlining Union Certification:

Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).(emphasis added)

Clearly, if a majority sign authorization cards, EFCA as now drafted says -- NO ELECTION.

Now, if Cummings' argument is the nuanced one that an election will be held if more than 30, but less than 50% have signed authorization cards at the time the petition is filed, I would agree that would be a true statement, but although as set out in this post, likely still misleading.

I actually have written Cummings at Politico asking her to explain why her statement in her article is an accurate statement and hopefully she or others will respond.

I think the debate about EFCA is a very important, and clearly one on which people of good faith will have different view points, but it would be nice if we could at least agree on what the law as drafted provides when it is straightforward and not open to interpretation (at least as I read it.) And anyone (certainly including me) writing on this issue should get the basic facts straight.

On a slightly different (and certainly a less ranting) note, for those interested in the horse race aspects, check out this in depth review of where 23 key Senators might stand on not only supporting EFCA itself, but more importantly on the issue which will really determine its fate, whether to vote to invoke cloture. See EFCA: Counting the votes at Campaign Diaries.

Update: Ivan Osorio at OpenMarket.org was ahead of me on calling Cummings out on the above paragraph. See, With news coverage like this ...

Might Want to Ask Your Judge for a "Non-Twittering" Instruction

Amazing how technology changes life, including the life of a trial lawyer: Juror’s Twitter use in court may cause mistrial.

An off the cuff instruction:

Jurors are instructed not to blog, twitter, comment on facebook, myspace or any other social media concerning this litigation until 30 days after you are released. If you do not know what blog, twitter, facebook, myspace or social media mean, where have you been?

Probably not what you should submit, although it might be a good voir dire question!

Hat tip to Mike Ferro at Tech-Blorge. Have to love their mission statement:

We serve the global IT community.

Our mission is to provide gutsy, honest and informed coverage and comment on key technology news and issues, without fear or favor.

We want to inform, stimulate and entertain our readers. We want to provide you with a fresh, independentperspective.

Our motto is “technology with attitude”

Two Member NLRB Legal, At Least in the First Circuit

The NLRB has been working with only two members (out of five) for over a year now. The two members (one Democrat and one Republican) have only issued decisions when they could agree, which for the most part means the outcome was not particularly controversial.

However, the legitimacy of those decisions is of great importance to the parties to the ruling and challenges have been pending in both the DC and First Circuits. For some background see Authority of 2 Member NLRB To Issue Decisions Is Being Litigated at the Adjunct Law Prof Blog.

Today, in Northeastern Land Services, Ltd. v. NLRB (1st Cir. 3/13/09) held that the two member Board had the power to act. The Court based its decision in part on Chevron deference to the Board's view of its powers and also agreed with a 1982 decision of the 9th Circuit.

The case pending in the DC Circuit is Laurel Baye v. NLRB.