Archive for the 'EFCA' Category

Organized Labor Still Has Friends in D.C.

A couple of years ago at this time of year every labor lawyer you know, including me, was running around like Chicken Little screaming about how the sky was falling. After all, we had a Democratic President, the House of Representatives had a significant Democratic majority and the Senate had a filibuster proof majority of Democrats. Top that off with a healthy dose of organized labor support for the new president and his party and we thought we were right to panic. At least I thought I was right when I said that with the changes in government we had the most labor friendly government in Washington since the New Deal. Of course, with health care and all taking up so much time very little in the way of new labor legislation was actually passed.  But you have to cut me a little slack. After all, the president made his support of unions a cornerstone of his campaign and the very first bill signed into law by the new administration was the employee friendly Lilly Ledbetter Fair Pay Act. So we spend a lot of time talking about things like the Employee Free Choice Act. In fact, my very first post on this blog was about the EFCA.

But none of it happened.

What have I learned from all this? Mostly to relax and see what happens before I start screaming the odds. As I’ve already told you I am not making predictions this year. I’m just going to give you the facts. And the facts are these: the administration has not given up on supporting unionization of the private sector. (Don’t believe me? Take a look at this.)

Friday the Secretary of Labor, Hilda Solis, issued a statement regarding the Bureau of Labor Statistics report on union membership for 2010. The report did not paint a rosy picture for organized labor. I was going to put a link into the statement, but since it is short, I’m going to include the whole thing:

Statement by Secretary of Labor Hilda L. Solis on Bureau of Labor Statistics report on union members in 2010

WASHINGTON –Secretary of Labor Hilda L. Solis issued the following statement regarding the Bureau of Labor Statistics’ annual “Union Members – 2010” report released today:

“Today, the Bureau of Labor Statistics announced that, in 2010, the unionization rate of employed wage and salary workers was 11.9 percent, down from 12.3 percent in 2009. Among private sector employees, the rate dropped to 6.9 percent from 7.2 percent in 2009.”

“The data also show the median usual weekly earnings of full-time wage and salary union members were $917 per week, compared to $717 for workers not represented by unions. For Latinos, the wage disparity is even greater with union members earning an average of $771 compared to $512 for workers not represented by unions, a difference of 33.6 percent.”

“When coupled with existing data showing that union members have access to better health care, retirement and leave benefits, today’s numbers make it clear that union jobs are not only good jobs, they are central to restoring our middle class.”

“As workers across the country continue to face lower wages and difficulty finding work due to the recent recession, these numbers demonstrate the pressing need to provide workers with a voice in the workplace and protect their right to organize and bargain collectively.”


I think that about says it all doesn’t it?  Unionization is down, and the administration blames the damage to the middle class, at least in part on the low level of unionization. It is pretty clear that the administration, from the Department of Labor to the NLRB, to the President himself,  is going to do whatever it can to make it easier for unions to organize your workforce. So, if you are trying to decide where your HR priorities should be, at least for the start of 2011, might I suggest some supervisor training. You need to make certain that your supervisors know how to deal with questions about unionization and what it means when they come up. You might think you know, but there are already some pretty sever restrictions on what your supervisors can and cannot say when faced with a potential organizing drive. And the answers are not always intuitive. So, if you have questions, give me a call. I can help.


Seems as though the fight over the method by which employees will select (or have thrust upon them) union representation has taken a little detour.  We all know by now that the much ballyhooed and completely misnamed Employee Free Choice Act is stalled in Congress.  Despite my predictions to the contrary, the thing just does not seem to move.

According to the Washington Wire, a blog of the Wall Street Journal, which you can find at the Senate is now fighting over one or the President’s nomination to the National Labor Relations Board.  Craig Becker has served as an associate general counsel to both the SEIU and the AFL-CIO.  He and Mark Pearce were the choices of the Democrats to fill two of the three vacant NLRB seats.  Brian Hayes a former Republican Senate staffer is the choice of the Republicans for the third.  All three were approved by the Senate Health, Education, Labor and Pensions Committee chaired by Senator Tom Harkin of Iowa.  Mr. Pearce and Mr. Hayes were unanimously approved and Mr. Becker was approved by a 15-8 vote.  All three will should now go to the Senate floor for confirmation.

But not so fast.  Seems several business organizations, including the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business among others oppose the nomination of Mr. Becker.  So, Senator John McCain placed a “hold” on Mr. Becker’s nomination blocking a vote on confirmation in the full Senate.

How come you might ask is there so much opposition to Mr. Becker and not Mr. Pearce, also a choice of the Democrats?  Well that is where the EFCA comes in.  Mr. Becker has a history of written work.  These business organizations and presumably Senator McCain (or at least his staff) have read that written work and are troubled, suggesting that it indicates that Mr. Becker might try to do by NLRB decision what the Democrats have not been able to do by legislation, namely do away with secret ballot election.  According to the Washington Wire “The business group [the U.S. Chamber of Commerce] says [Mr.] Becker’s written positions have been well outside the mainstream and they fear he’d disrupt the “delicate balance” in current labor law to disadvantage employers.”  Presumably the nomination will eventually go through, despite the hold and Mr. Becker and the rest of the Board will be able to vote to change long standing NLRB procedures for conducting elections.

So tell me again where the free choice is in all this?


Ok, I said it in print and I said it in person.  Before the new Congress took its seat and before the new President took office, I was sure that the first bill out of the new Congress was going to be the Employee Free Choice Act.  After all, we have, for the first time in a very long time, a House of Representatives controlled by pro-union Democrats.   We have a pro-union Democrat in the White House, and a pro-union Senate controlled by Democrats.  In fact, a pro-union Senate that can invoke cloture and shut down a filibuster on any bill they really want too.  (By the way, I use “pro-union” and not “pro-labor” because most of the people who actually “labor” in this country do not belong to unions). And yet here we are, on the 09-09-09 and still, no Employee Free Choice Act?  Seems I was wrong.


That’s good, but one wonders why?  I mean, come on, this was a slam dunk.  So what happened?  Well, a bunch of stuff, for example it took forever for Minnesota to work out their difficulties and actually seat Senator Franken.  Then, one of the clear voices in favor of this bill and a key figure and chairman of the committee, Senator Kennedy became ill and ultimately passed away.  Then Congress and the President decided to tackle health care reform.  And now, this. 


On September 7, the Los Angeles Times featured a really interesting article about a recent Gallup Poll.  According to the poll, the general public is not as keen on unions as it once was.  In fact, according to the Times article:

A Gallup poll last month found that the public has become less supportive of unions than at any time since Gallup began asking that question in 1936.

Forty-eight percent of the 1,010 respondents in the Aug. 6-9 telephone poll said they approved of unions, down from 59% a year earlier, Gallup said.

The percentage saying they disapproved of unions jumped to 45% from 31% in the same period. (The rest had no opinion.)

Now unions are pushing hard for the EFCA because they say that the current deck is unfairly stacked against them.  Anyone who has had to deal with an NLRB complaint or election might disagree with that.  In fact, most employers would say that the deck is unfairly stacked in favor of unions already.  Yet, union membership in the private sector continues to decline.  The Times article suggests that one of the reasons that the public’s view of unions is so negative is jealousy.  According to the Times, non-union workers may just be jealous of the security and benefits union workers have.  Really?  Wouldn’t that make union membership increase?  I think another statistic from the poll is more telling. 

And 51% now say unions “mostly hurt” the economy in general, up from 36% in 2006, the last time that question was asked.


Seems to me the public may have caught on.  Look at the American auto companies.  One of the most unionized industries in American history.  On the brink of falling apart and being replaced by largely non-union Asian companies.  Sound familiar?  Sure it is, anyone remember big American steel?  Same story.  Still, in speeches given on Labor Day, both President Obama and

Vice President Biden reaffirmed their support for the EFCA.  In fact, the Vice President promised it would pass by the end of the year.  So much for how the public feels.

You can see the rest of the Times story at  and decide for yourself.                                             

AND WE’RE OFF . . . .

When I decided to start a blog on labor and employment law I spent a fair amount of time trying to decide how to kick it off.    What do I write about first and what tone should we take with the blog.  You’ll be happy to know that I have decided both.  Second first.  The tone will be a bit more irreverent than you may be used to from a lawyer.  Those of you that have read anything that I write for WNJs newsletter probably guessed that.  Why irreverent?  Because, especially today, I think we can all use a little humor.  Besides, I want you to read the thing. If I spent all of my time reciting facts from cases and pointing out the intricacies of a particular bill (we will do some of that, but only where I think it is really important) you would all stop reading the thing and then I would be writing to myself.  Which frankly is about as much fun as talking to myself!  “Oh, it is not, stop saying that.”  “Yes it is, mind your own business.”  Sorry, I got off track.


Anyway, having decided on the tone, I needed a first post.  And along came the United States Senate.  According to the headline in Friday the 17th‘s New York Times, “Democrats Drop Key Part of Bill to Assist Unions.”  You can see it here:

What Bill are we talking about now?  Oh yea, the Employee Free Choice Act, the talk of the labor lawyer town recently.  Also known as the “Card Check Act” the EFCA would amend the NLRA to among other things mandate union certification if a majority of folks in an appropriate unit signed union authorization cards.  No campaign, no election, no nothing.  Just behind the scenes union strong arming of your employees without you having a chance to do or say anything about it.  Interesting definition those unions have of “free choice” don’t you think.  So what “Key Part” of the Bill did the Senate agree to drop?  Why the card check part, that’s what key part?  Wow, the unions must be going nuts?  Not really.  I checked and as of the time I wrote this, which was well after the Times piece came out, only one comment from any union head and that was not a negative comment.  According to, Andy Stern, president of the SEIU said:


“As we have said from day one, majority signup is the best way for workers to have the right to choose a voice at their workplace. The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority signup provision in the final bill or by amendment in both houses of Congress.”


You can see the quote here:


Mr. Stern does not seem that broken up.  How come, after all, what is a card check bill without the card check.  Well let me tell you what it is, it is still a problem for employers and frankly for the economy.  Why?  Because this was never the worst part of this bill.  What was the worst part was always, and continues to be the provision that mandates arbitration of 1st contracts if agreement is not reached within a very short specified time limit.  Having an arbitration panel decide what you should pay and what benefits you should provide is likely to cause a whole lot of business to go under.  How is that good for the economy?  How is that good for employees?  How is it good for anyone?