Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB  recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”

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As has been anticipated in labor circles since President Obama took office, on Tuesday, the National Labor Relation Board (NLRB or “Board”) announced (pdf) that it would reconsider its decisions in Dana Corp., 351 NLRB 434 (2007) (pdf) and MV Transportation, 337 NLRB 770 (2002) (pdf), cases that address voluntary recognition agreements and successor employers, respectively. The five-member Board agreed 3-2 along party lines to consider two groups of consolidated cases that ask the agency to overturn in whole or in part its rulings in these two earlier decisions. NLRB Chair Wilma Liebman dissented in both cases when they were originally issued and the decisions are part of a larger group of controversial decisions issued by the Bush-era Board that organized labor is dedicated to revisiting.

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Ending a four-year schism, the Laborers’ International Union of North America (LIUNA) has decided to rejoin the AFL-CIO as of October 1, 2010. LIUNA, with more than half a million members in the construction industry, had withdrawn from the AFL-CIO in 2006 to affiliate with Change to Win, a competing labor movement comprised of the LIUNA, the International Brotherhood of Teamsters (IBT), the Service Employees International Union (SEIU), the United Farm Workers of America (UFW), and the United Food and Commercial Workers International Union (UFCW). The SEIU instigated this mass defection from the AFL-CIO to form Change to Win in 2005, purportedly due to internal disagreements about the direction of the organization. AFL-CIO president Richard Trumka has made it a mission to unify the labor movement.

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The Department of Labor’s Office of Labor-Management Standards (OLMS) has published a proposed rule (pdf) to modify union disclosure Form LM-30 and its instructions. The Labor-Management Reporting and Disclosure Act (LMRDA) requires labor organization officers and employees and their spouses and minor children to publicly disclose certain financial interests held, income received, and transactions engaged in to prevent any conflicts of interest. Such disclosures are made on the Form LM-30, (pdf) which was last amended in 2007.  According to the OLMS, these changes “left unresolved fundamental questions about the reporting obligations of union officials, questions raising policy and legal issues warranting reexamination by the Department.” Therefore, on March 19, 2009, the OLMS issued a non-enforcement policy that allowed affected parties to file either the 2007 or previous LM-30 form while it sought input as to whether and how to amend the form yet again. The agency claims that the proposed changes published in the August 10 edition of the Federal Register address “the complexity of the form and its instructions, as well as the scope and extent of the LM-30 reporting obligations.”

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On Tuesday, supporters of the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act (S. 3628) failed to gain sufficient votes to advance the measure in the Senate. By a vote of 57-41, the motion to invoke cloture on the bill fell short of the 60 votes necessary to end debate. This campaign finance legislation would require most organizations to report to the Federal Election Commission (FEC) the origins of the funds used for political advertising, and place strict limits on political spending by most federal contractors and foreign-controlled companies. This bill was introduced in response to the Supreme Court’s decision in Citizens United v. FEC released earlier this year that eased the ban on corporate and union political spending by holding that such restrictions are unconstitutional.

Last month, the House of Representatives narrowly cleared its version of the bill (H.R. 5175) by a 219-206 margin. Provisions in this draft seen as carving out exceptions for labor unions had drawn heavy fire from the business community. While the Senate version removed some of the offending provisions, it still includes sections that limit spending by companies with significant federal contracts or a high percentage of foreign investors, restrictions that largely do not affect labor unions.

Photo credit:  MBPHOTO, INC.

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Late last week, the Senate rejected advancing the supplemental appropriations bill approved by the House of Representatives (H.R. 4899).  The House-passed version of the bill included an amendment (pdf) providing public safety employees with collective bargaining rights. Specifically, the amendment incorporated provisions of the Public Safety Employer-Employee Cooperation Act (PSEECA) (H.R. 413; S. 1611, 3194), which would have provided firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them, establish minimum standards for collective bargaining rights for these groups, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The House tacked on this provision, in addition to other domestic spending measures, before it approved the bill on July 1. It is not surprising that the Senate rejected this amended version, considering last May, Sen. Majority Leader Harry Reid (D-NV) had also introduced the PSEECA as an amendment to the Senate’s appropriations bill, but withdrew it shortly thereafter. It is likely that the House will take up the Senate-approved war appropriations bill that does not contain the additional spending measures before Congress adjourns for the August recess.

Given that the standalone bill has little chance of advancing this legislative term, lawmakers in the House likely included the PSEECA in the larger spending bill to increase its odds of passing.

Photo credit:   MBPHOTO, INC.

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The Air Transport Association of America (ATA) has filed a notice of appeal in its lawsuit challenging the National Mediation Board’s (NMB) new controversial election rule. (pdf)  On June 25, the United States District Court for the District of Columbia granted the NMB’s motion for summary judgment and denied the ATA’s motion to preliminarily block the NMB from implementing its rule that overturns the election procedure that has been in place for 75 years. Specifically, the new rule makes it easier for workers in the airline and railroad industries to unionize by basing the voting results on the majority of those who actually vote, as opposed to allowing the majority of employees eligible to vote to determine the outcome.

On May 17, the ATA filed suit challenging this new rule on the grounds that – among other reasons – the NMB’s decision to change the established procedure was done without legitimate justification, and was thus “arbitrary, capricious [or] an abuse of discretion.” In addition, the ATA avers that the decision to deviate from the longstanding rule was predetermined and did not take into consideration the concerns raised by the industry and by NMB Chair Elizabeth Dougherty, who herself deemed the rule to be “the most dramatic policy shift in the history of the agency.”

For more information on this development, see Littler’s ASAP: District Court Clears Way for Implementation of New NMB Rules for Union Elections in Air and Rail Industries by Jack Lambremont and Chip McWilliams.

Photo credit:  ericsphotography
 

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The National Labor Relations Board (“NLRB” or “Board”) has announced (pdf) that it has ratified the General Counsel’s (GC) litigation authority and the Board’s administrative, personnel, and procurement actions taken during the 27-month period when the Board operated with only two acting members. The Board’s ratification does not extend to the unfair labor practice decisions and representation case rulings issued by members Wilma Liebman (D) and Peter Schaumber (R) during that time. It is estimated that from January 2008 through the beginning of April 2010, the two-member panel issued more than 600 Board opinions. In June, the Supreme Court held in New Process Steel that at least three members are needed to exercise the Board’s authority, thus calling into question the legitimacy of the cases decided and other actions taken during that period.

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In the wake of the recent Supreme Court decision holding that the National Labor Relations Act (NLRA) requires that the National Labor Relations Board (NLRB) must operate with at least three members in order to exercise its full authority, the NLRB has issued a roadmap (pdf) explaining how it will handle cases sent back to the agency that were decided by only two acting members. It is estimated that nearly 600 cases were adjudicated in this fashion during the 27-month period before President Obama used his recess appointment power in March to seat members Craig Becker (D) and Mark Pearce (D). The Senate confirmed the nominations of Pearce and Brian Hayes (R) in June, restoring the NLRB to full power.

According to the NLRB, at the time the Supreme Court issued its June 17 decision, “96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.” As discussed in the NLRB press release, each of the remanded cases will be considered by a three-member panel of the Board, which will include Chairman Wilma Liebman (D) and NLRB Member Peter Schaumber (R), the two members who initially decided the remanded cases. “Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.” With respect to two-member Board rulings not already challenged in the federal appellate courts, the press release stated that it is unclear at this time how many of such rulings can or will be contested and how many may now be moot.

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Late Thursday, the House of Representatives approved the Supplemental Appropriations Act of 2010 (H.R. 4899) that included an amendment (pdf) incorporating the Public Safety Employer-Employee Cooperation Act (PSEECA), which would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them, establish minimum standards for collective bargaining rights for these groups, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. As explained in a press release issued by Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, the bill that cleared the House:

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A recent report published by the Congressional Research Service (CRS) has called into question lawmakers’ claims that the Constitution’s commerce clause provides legislators the authority to enact the Public Safety Employer-Employee Cooperation Act (PSEECA) (H.R. 413; S. 1611, 3194). This bill, which was first introduced in 1995, has been reintroduced in the 111th Congress in the House by Rep. Dale Kildee (D-MI) and in the Senate by Sen. Judd Gregg (R-NH) in 2009, and by Sen. Harry Reid (D-NV) in 2010. In addition, a proposed amendment (pdf) to the 2010 Supplemental Appropriations Bill incorporates the PSEECA into the broader spending measure, which the House is expected to vote on this week.

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On Friday, a federal court judge issued an order (pdf) that will effectively permit the National Mediation Board’s (NMB) final rule (pdf) changing its 75-year-old representation election policy to proceed as planned. On May 17, the Air Transport Association of America (ATA) filed a lawsuit in federal court seeking to prevent the NMB from implementing this change to the election process that will make it easier for unions to organize airline and railroad employees. Under the long-established approach, a majority of employees eligible to vote in representation elections determined the outcome of the election. As a result, employees who chose not to participate are effectively viewed as “no union” votes. The NMB’s new rule changes this policy by basing the voting outcome on the majority of those who actually vote, as is closer to the practice in non NMB-governed industries.

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On June 24, 2010, the U.S. Supreme Court issued a pro-employer opinion in Granite Rock, Inc. v. International Brotherhood of Teamsters, et al., (pdf) providing valuable guidance on the arbitrability of disputes over the timing of the formation of collective bargaining agreements.

The Court (7-2) held that the question of exactly when the parties formed an agreement to arbitrate certain disputes was not itself subject to resolution through arbitration. The Court also declined to recognize Granite Rock’s cause of action under Section 301 of the Labor Management Relations Act (LMRA) against the International Brotherhood of Teamsters’ (IBT) for tortious interference with a collective bargaining agreement. The Court remanded the case to the lower court to allow Granite Rock to proceed against the International on the theory that the local union was acting as the IBT’s agent when it refused to abide by the no-strike clause of the parties’ collective bargaining agreement.

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The National Labor Relations Board’s (NLRB) general counsel (GC) has issued guidance (pdf) to the agency’s regional officers and directors on how to process unfair labor practice (ULP) charges involving employee class action waivers in mandatory arbitration agreements. The GC explained that questions have arisen “regarding the validity of mandatory arbitration agreements that prohibit arbitrators from hearing class action employment claims while at the same time requiring employees to waive their right to file any claims in a court of law, including class action claims.” In essence, the GC concluded that such class action waivers do not per se violate the National Labor Relations Act’s (NLRA) provisions allowing employees to engage in protected, concerted activity, but that certain principles must be followed.

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On Tuesday, the Senate officially confirmed (pdf) the nominations of Mark Hayes and Brian Pearce to be members of the National Labor Relations Board (NLRB). The two were included in a package of more than 60 nominees confirmed by voice vote. President Obama previously gave recess appointments to Pearce and Craig Becker, whose nomination failed to advance in the Senate. Controversial nominee Craig Becker, whose recess appointment expires at the end of 2011, was not among those nominees confirmed today. With the addition of Hayes, the Republican nominee, the current composition of the Board and the duration of the members’ terms are as follows:

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The Office of Federal Contract Compliance Programs (OFCCP) has issued a directive on its verification procedures under Executive Order (E.O.) 13496, Notification of Employee Rights under Federal Labor Laws. (pdf) This E.O. mandates that all government contracting departments and agencies include a provision in government contracts covered by the order stipulating that contractors and subcontractors post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA). The Department of Labor’s Office of Labor Management Standards (OLMS) published a final rule (pdf) implementing this E.O. last month. The OFCCP is responsible for investigating complaints, performing compliance evaluations, conciliating compliance issues, and referring violations to the OLMS for enforcement. The directive published online this week outlines the processes and procedures it will use to perform these tasks.

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Potentially invalidating hundreds of National Labor Relations Board (NLRB or “Board”) decisions, the U.S. Supreme Court has held that the National Labor Relations Act (NLRA) requires that the NLRB must operate with at least three members in order to exercise its full authority. In New Process Steel v. NLRB, (pdf) the Court rejected the argument that the NLRA’s delegation and quorum clauses enable the Board to act with only two members, which it had done from January 2008 through March of this year when President Obama used the recess appointment process to add members Craig Becker and Mark Pearce to the two-member panel.

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On June 9, 2010, the National Labor Relations Board (NLRB or “Board”) made a move wholly consistent with its anticipated commitment to implementing “significant change.” Specifically, the Board revealed that it is exploring the future use of electronic and internet voting in representation elections. Pursuant to longstanding secret ballot election standards, no such electronic or internet means for casting votes (remote or otherwise) in a Board-conducted election is recognized as permissible. As the controversial and newest Board Members Craig Becker and Mark Pearce start getting situated among their two sitting colleagues, the NLRB’s efforts to alter well-settled Board election standards seem to be in full swing.

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As a result of the NLRB’s June 3, 2010 decision (pdf) refusing to review a regional director’s ruling that the interns and residents at St. Barnabas Hospital in the Bronx, New York, are employees, the ballots they cast in a union election on June 18, 2009 will shortly be counted. The results of the vote will determine whether the hospital’s interns and residents will be joining the Service Employees International Union (SEIU). The central issue presented by the election petition filed by an SEIU local in 2009 was whether the hospital’s interns and residents were “employees” with the right to organize, or students not covered by the National Labor Relations Act (NLRA).  Continue reading this entry at Littler's Healthcare Employment Counsel blog. 

Photo credit:  Steve Debenport Imagery

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The New York Regional Office of the National Labor Relations Board (NLRB) has dismissed a petition filed by the Graduate Student Organizing Committee (GSOC/UAW Local 2110) seeking union recognition for NYU graduate student teaching and research assistants. According to a press release, (pdf) the dismissal was based on the Board’s 2004 finding in Brown University (pdf) that graduate student assistants are not statutory employees subject to the National Labor Relations Act (NLRA). The regional office’s decision now leaves the door open for the union to seek Board review of the Brown decision “on the basis that it was wrongly decided both as a matter of law and policy.” Given the new composition of the NLRB following President Obama’s recess appointments in March, a reversal of the earlier decision is entirely possible.

In addition to potential Board action, legislation has been introduced in both the House and Senate this term that would reverse the Board’s decision in Brown. The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461, S. 813) would effectively allow private university students who serve as teaching and research assistants to form or join a union.

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Ronald Meisburg, General Counsel (GC) to the National Labor Relations Board (NLRB), plans to leave the Board eight weeks shy of the end of his term in order to enter private practice. A former management-side lawyer, Meisburg was seated via recess appointment as a Board member in 2004, and as General Counsel in 2006. Meisburg, after the Senate confirmed his nomination in August 2006, was to serve as GC until August 14, 2010. His vacancy will allow President Obama to appoint his own choice to fill this position, which has been held by a Republican since 2001. In March, Obama used the recess appointment process to seat Democrats Craig Becker and Mark Pearce as NLRB members.  Republican nominee Brian Hayes was not similarly seated, and has yet to receive a Senate confirmation. The sole remaining Republican member, Peter Carey Schaumber, will complete his term on August 27, 2010.

Although a significant amount of controversy surrounded Obama’s choice of former union general counsel Becker as an NLRB member, the general counsel pick could be equally contentious, given the enforcement power that accompanies the position. The NLRB traditionally makes changes to labor law through its rulings and the general counsel determines which cases are put before the NLRB. Therefore, which cases the general counsel chooses to pursue are a critical component with regard to what issues the NLRB will have an opportunity to decide. The selection of the person who determines which cases will be considered is likely to be as controversial as the selection of individuals who ultimately will decide those cases. At this point, however, there is no clear front-runner as Meisburg’s replacement. In a letter to NLRB employees, Meisburg announced that Deputy General Counsel John Higgins will take over any new cases presented to the Board.

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As a result of yesterday’s status conference in the federal lawsuit filed by the Air Transport Association of America (ATA) to stop the National Mediation Board (NMB) from implementing the May 10, 2010 Final Rule (pdf) changing its 75-year-old election procedures, the NMB will delay the effective date of its new rule from June 10 to June 30. In the meantime, the court is expected to hear arguments on June 3 on ATA’s motion to take expedited discovery stemming from its request for a preliminary injunction against the NMB’s rule. The hearing on the injunction motion will then take place June 14. In addition, the court allowed the United States Chamber of Commerce, a group of Delta Airlines employees represented by the National Right to Work Foundation, and the International Brotherhood of Teamsters to intervene in the lawsuit. 

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On Monday, the Department of Labor’s Office of Labor-Management Standards (OLMS) held a public meeting to discuss potential changes to employer and consultant reporting under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 establishes reporting and disclosure requirements for employers and labor relations consultants who enter into agreements or arrangements “whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.” The agency requires employers and consultants to annually fill out certain disclosure forms regarding these arrangements. As the law currently stands, Section 203(c) exempts employers and consultants from filing these reports by reason of the consultant’s giving or agreeing to give “advice” to the employer. During Monday’s hearing, the OLMS indicated that it believes the current interpretation of the advice exception was overbroad and seeks to narrow it through rulemaking, as outlined in its semiannual regulatory agenda. (pdf)

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The Department of Labor’s Office of Labor Management Standards (OLMS) will publish in tomorrow’s Federal Register a final rule (pdf) implementing Executive Order (EO) 13496: Notification of Employee Rights Under Federal Labor Laws. (pdf)  This EO mandates that all government contracting departments and agencies include a provision in most government contracts stipulating that the contractor post a notice “in all places where notices to employees are customarily posted both physically and electronically,” informing them of their rights under the National Labor Relations Act (NLRA).

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On May 17, 2010, the Air Transport Association of America (ATA) filed a lawsuit in federal court seeking to prevent the National Mediation Board (NMB) from implementing a change to its 75-year-old election process that would make it easier for unions to organize airline and railroad employees. In the lawsuit, the ATA claims that NMB’s Final Rule should be set aside because it contravenes the clear and unambiguous language of the Railway Labor Act. The association also argues the NMB’s conduct was “arbitrary, capricious [or] an abuse of discretion” in that the NMB, among other actions, departed from its long-standing rule without legitimate justification, predetermined its course without regard to concerns raised by the industry, and selectively borrowed only pro-union provisions from the labor statute that applies to non-rail and non-airline employees.

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The National Labor Relations Board (NLRB or “Board”) is inviting “all interested parties” to file amicus briefs in pending cases involving whether employers should be required to electronically post Board-ordered remedial notices, and whether the Board should routinely order compound interest on back pay and other monetary awards in unfair labor practice (ULP) cases. The NLRB considers these issues to be “significant” for employees, employers and unions.

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The same day the National Mediation Board (NMB) published a final rule (pdf) amending its representation election procedure to make it easier for employees in the air and rail industries to unionize, Sen. Johnny Isakson (R-GA) introduced a measure in opposition to this change. Senate Joint Resolution 30 calls for Congressional disapproval of the agency’s action, which is the first step in allowing Congress to overturn the rule.

As reported in The Hill’s Blog Briefing Room, Isakson said that he “will have the signatures necessary to discharge my resolution of disapproval, to bring about a vote on the floor of the Senate.” The resolution was introduced with 25 co-sponsors. Thirty votes are needed to bring the measure to the Senate floor for a vote, and 51 are needed to pass the resolution in the Senate. There are currently 41 Republican senators, so in the event the resolution does make it to the floor, it will need to garner a level of bipartisan support to succeed. As Isakson stated during a news interview, “If it's a partisan vote, we'll lose. If it's a pragmatic, thoughtful vote, we'll win.” Isakson considered the rule to be a way of implementing the infamous “card check” provision of the Employee Free Choice Act (EFCA) “by running around the back door, and that's not right.”

This measure has been referred to the Senate Committee on Health, Education, Labor and Pensions (HELP).

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The Department of Labor’s (DOL) Office of Labor Management Standards (OLMS) has launched the Union Elections Advisor, an interactive web site “intended to describe certain rights of union members and candidates in union officer elections, and the responsibilities of union officers and others involved in conducting union officer elections” under the terms of the Labor-Management Reporting and Disclosure Act (LMRDA). Title IV of the LMRDA requires periodic election of union officers and prescribes minimum standards to ensure that such elections are fairly conducted.

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The Department of Labor’s (DOL) Office of Labor Management Standards (OLMS) announced its intent to hold a public meeting to solicit input regarding employer and consultant reporting under section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA). Section 203 establishes reporting and disclosure requirements for employers and labor relations consultants who enter into agreements or arrangements “whereby the consultant (or other person) undertakes activities to persuade employees as to their rights to organize and bargain collectively or to obtain certain information concerning the activities of employees or a labor organization in connection with a labor dispute involving the employer.” Employers and consultants are required to annually fill out certain disclosure forms (LM-10, LM-20) regarding these arrangements.

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In tomorrow’s edition of the Federal Register, the National Mediation Board (NMB) is set to publish a final rule (pdf) amending its representation election procedure that has been in place for 75 years, making it easier for employees in the air and rail industries to unionize. Under the existing approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. Therefore, employees who chose not to participate are counted as “no union” votes. Effective as of June 10, 2010, the NMB’s final rule upends this decades-old policy by basing the voting outcome on the majority of those who actually vote, as is the practice in non-NMB-governed industries.

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The Graduate Student Organizing Committee (GSOC/UAW Local 2110) has filed a petition with the National Labor Relations Board (NLRB) demanding union recognition for NYU graduate student teaching and research assistants. In a statement, members said:  “Like any other workers, we want a union so that we can bargain collectively around wage, benefit and workplace issues, and achieve security and stability in the workplace,” adding: “GSOC/UAW Local 2110 is the only union that can guarantee the full collective bargaining rights of NYU graduate employees and represent our interests in ALL of the work that we perform for the university, including teaching, research and administrative services.” Last week, the American Arbitration Association (AAA) verified that a majority of NYU graduate students who serve as teaching and research assistants chose to be represented by Local 2110 in collective bargaining with the NYU administration. If the graduate students’ petition is successful, it would be the first time since 2004 that graduate students at a private university would be deemed covered by federal labor law. That year the NLRB decided in Brown University (pdf) that graduate student assistants are not statutory employees subject to the National Labor Relations Act (NLRA). The NYU graduate students’ petition may present the opportunity for the newly-appointed members of the NLRB to revisit the Brown University decision.

A bill has already been introduced in both the House and Senate this term that would reverse the Board’s decision in Brown.  The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461, S. 813) would effectively allow private university students who serve as teaching and research assistants to form or join a union.

Photo credit: Joshua Hodge Photography

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Service Employees International Union’s (SEIU) secretary-treasurer, Anna Burger, has withdrawn her candidacy for union president, all but ensuring that Mary Kay Henry, an international executive vice president, will take the helm. On April 14, long-time president Andy Stern announced his retirement.  Burger acknowledged that she lacked the votes from SEIU’s executive vice presidents to win the election, slated for May 8, and vowed to work with Henry “to make sure that this is a smooth transition and that our union will continue to help our members do extraordinary things.” In her announcement to withdraw from the race, Burger denied that the support for Henry amounted to a “shift in SEIU’s priorities” or a "rejection of the Stern/Burger agenda.”

Henry has been an employee for the SEIU since 1979 and was elected as an international executive vice president in 2004. Much of Henry’s career with the SEIU has focused on promoting union membership for health care workers.

Photo credit:  SEIU.org

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Update:  This entry has been updated to reflect Stern's official retirement announcement.

Service Employees International Union (SEIU) President Andy Stern announced his retirement on April 14. Stern, who has served in this capacity since 1996, has been a controversial labor figure, having led the departure of several major unions from the AFL-CIO to form the labor affiliate Change to Win in 2005. Stern also was instrumental in the breakup of UNITE HERE, which had been created by the merger of HERE, representing workers in the hotel and food service industries, and UNITE, which organized workers in the textile and apparel industries. The resulting split left some members to form the competing Workers United union, which subsequently affiliated with the SEIU. The remaining members of UNITE HERE, which included mostly former HERE members, rejoined the AFL-CIO.

Stern has led the SEIU to be the fastest-growing labor union in the United States. Although it is uncertain who will permanently replace Stern, a recent New York Times article speculates that SEIU Secretary-Treasurer Anna Burger will take the helm. Burger is also Chair of Change to Win, and will serve as interim president until the SEIU's International Executive Board votes on a successor within the next 30 days.  Other possible candidates include Mary Kay Henry, SEIU’s Executive Vice President.

Photo credit:  SEIU

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In tomorrow’s edition of the Federal Register, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) will publish a proposed rule (pdf) implementing Executive Order (EO) 13494, Economy in Government Contracting, which precludes government contractors from being reimbursed for expenses incurred to influence employees regarding their decisions to form unions or engage in collective bargaining. Issued on January 30, 2009, EO 13494 considers as un-reimbursable any activities that are undertaken to persuade employees to exercise or not exercise such rights, such as preparing and distributing materials, hiring or consulting legal counsel or consultants, holding meetings (including paying the salaries of the attendees at meetings held for this purpose) and planning or conducting activities by managers, supervisors or union representatives during working hours. Such expenditures are deemed “unallowable” under any federal government contract by the order. Although federal contractors cannot use federal funds for these purposes, they may use federal dollars to “maintain satisfactory relations” between the contractor and its employees. As stated in the order, such expenditures could include the cost of labor-management committees, employee publications (provided they do not attempt to persuade employees regarding unionization), and other related activities.

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In tomorrow’s edition of the Federal Register, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) will publish a final rule (pdf) implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6, 2009, EO 13502: Use of Project Labor Agreements for Federal Construction Projects declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

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The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) moved a step closer to full capacity this week when Craig Becker and Mark Pearce were sworn in as NLRB members, and Jacqueline A. Berrien and Chai Feldblum assumed their positions as Chair and Commissioner, respectively, at the EEOC. These individuals were among the 15 recess appointments made over the recent legislative break.

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Despite increasing opposition, President Obama on Saturday announced his appointment of 15 individuals to various federal agencies, including the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). Among those appointed was Craig Becker, the controversial NLRB Democratic nominee. Also given a recess appointment to the NLRB was the other Democratic nominee, Mark Pearce. However, the President did not give a recess appointment to the Republican nominee, Brian Hayes. On Thursday, Republican Senators sent a letter to Obama urging him not to do so. Randel K. Johnson, the U.S. Chamber of Commerce Senior Vice President of Labor, Immigration, and Employee Benefits, said of Becker’s appointment: “The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” Becker has been widely criticized for advocating admittedly “provocative” positions in this academic writings. During a hearing, Becker tried to distance himself from these statements, such as his belief that a new body of representation election rules should be created to limit employer involvement, including the holding of so-called “captive audience” meetings. Many lawmakers and business interests continue to question, however, whether Becker can be impartial as a member of the Board. Becker’s term will now last until the end of 2011, unless the Senate appoints him to a full term.

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The new health care reform legislation has dramatic implications for all employers. For employers with existing collective bargaining agreements, there are unique considerations, both in the short and long-term. While full implementation of the law is still years away, employers should begin evaluating and preparing for its impact on collective bargaining agreements today.

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On Thursday, all 41 Republican senators signed a letter written by Senators Orrin Hatch (R-UT) and John McCain (R-AZ) urging President Obama not to appoint Craig Becker to be a member of the National Labor Relations Board (NLRB) over the upcoming two-week recess. Expectation has been building that Obama would use this method to seat Becker on the Board over the legislative break.  In a statement, Sen. Hatch claimed:

Craig Becker stands far outside the mainstream of NLRB nominees . . . Given the bipartisan opposition to his nomination, the Administration would be wise to not circumvent the will of the Senate by recess appointing him to the NLRB. There is no place on this powerful board for someone who believes that card check legislation – getting rid of the secret union ballot – can be enacted surreptitiously through regulation.

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It is becoming increasingly likely that controversial National Labor Relations Board (NLRB) nominee Craig Becker will be appointed as a Board member over the upcoming Congressional recess. According to an article in the Atlantic Online, “labor allies of the White House have been given strong indications that such an appointment is highly likely.” Specifically, reports abound that Sen. Tom Harkin (D-IA) has confirmed that President Obama will make the appointment soon. Earlier this month, Labor Secretary Hilda Solis hinted at this possibility during the American Federation of Labor & Congress of Industrial Organization's (AFL-CIO) annual meeting.

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According to a report by the Associated Press, Labor Secretary Hilda Solis hinted during the AFL-CIO annual meeting that President Obama would institute controversial nominee Craig Becker as a member of the National Labor Relations Board (NLRB) by means of a recess appointment, possibly during the Easter recess. On February 9, the Senate failed to pass a cloture motion on his nomination, fueling speculation that Obama would appoint Becker – who currently serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO – during the President’s Day recess. According to the AP story, Solis told AFL-CIO members that they would be “very pleased” with how the stalled nomination issue would be resolved. The Senate is set to adjourn for the Easter recess from March 29 through April 9.

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Coming one day after the Senate rejected advancing the nomination of Craig Becker to the National Labor Relations Board (NLRB), an op-ed piece by columnist Harold Meyerson in today’s The Washington Post proclaims that the Obama administration has been “close to an unmitigated disaster” for organized labor. According to the article, the Democrats’ loss of the Senate’s 60-seat filibuster-proof supermajority sounded the death knell for the Employee Free Choice Act (EFCA), any alleged “compromise” EFCA legislation, and the possibility to seat Craig Becker as a member of the NLRB. Although the column may have been written as a rallying cry for labor proponents, it is telling that a pro-union columnist is pronouncing labor’s legislative agenda dead so early in Obama’s term.

Photo credit: Christine Gehrig

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On Tuesday, the Senate rejected advancing the nomination of Craig Becker to serve as a member of the National Labor Relations Board (NLRB). Becker’s proponents failed to garner the 60 votes needed to limit debate over his nomination and allow a confirmation vote to occur. The 52-33 vote took place less than a week after the Senate Health, Education, Labor and Pensions (HELP) Committee approved Becker’s nomination by a party-line 13-10 margin.

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Due to the massive snowstorm that hit the Washington, D.C. area over the weekend, the cloture vote on Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB) has been rescheduled to Tuesday at 5:00 pm. At least 60 votes are needed to lift the blanket hold Sen. Richard Shelby (R-Ala.) put on his nomination, among others, and effectively limit debate. Unless Becker can garner the requisite 60 votes – made more difficult now that Scott Brown has been sworn in as the Senate’s 41st Republican – it is expected that those opposed to Becker will filibuster to prevent a confirmation vote.

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Sen. Harry Reid (D-Nev.) has filed cloture on the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB).  According to the Hill.com’s Blog Briefing Room, Sen. Richard Shelby (R-Ala.) has put a hold on all of Obama’s nominations pending before the Senate, including Becker’s. Therefore, at least 60 Senators must vote to end debate on the nomination – a feat likely made more difficult now that Republican Scott Brown has been sworn in as a Massachusetts senator. The Senate House, Education, Labor and Pensions (HELP) Committee cleared Becker’s nomination on Thursday on a party-line vote. Becker’s cloture vote is scheduled for Monday at 5:00 pm.

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By a party-line vote of 60-37, the Senate has confirmed the nomination of Patricia Smith to be the U.S. Solicitor of Labor. The Senate Health, Education, Labor and Pensions (HELP) Committee had approved her nomination on October 7, but controversy arose when Sen. Mike Enzi (R-Wyo.) accused Smith of making inconsistent statements during her confirmation hearing in May 2009. At issue was Smith’s testimony regarding the New York Wage Watch program, an initiative based on the Neighborhood Watch program that purportedly exposes businesses that violate wage and hour law. Smith is currently the Commissioner of the New York State Department of Labor (DOL), and unveiled the Wage Watch program last year. During her confirmation hearing, Smith denied that outside groups were involved in creating the program, an assertion that has come under fire. Sen. Enzi, Smith’s most vocal critic, has accused her of being a “trusted ally of organized labor and even allows them to participate heavily in the formulation of her agency's initiatives.” Smith later claimed that she “misspoke” about the timeline of various advocacy group and union involvement in the Wage Watch program. The alleged conflicting testimony threatened to derail Smith’s nomination, but the Senate voted 60-32 to end debate on her nomination on Monday, clearing the way for her confirmation.

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On Thursday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 13-10 along party lines in favor of Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB). This vote follows a contentious hearing over Becker’s nomination that was held on Tuesday. It was widely believed that once the HELP Committee cleared Becker’s nomination, it would be sent quickly to the Senate floor for a final vote before Republican Scott Brown was sworn in as senator, an event originally scheduled for next Thursday. This plan might be derailed, however, as it was announced yesterday that Brown could be sworn in as early as 5:00 pm today, raising the chances that Senate Republicans will be able to stop Becker’s confirmation.

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On Tuesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing on the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). During this hearing, Becker – Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations – tried to distance himself from the controversial positions he has taken in his scholarly writings, and assure committee members that he would be impartial Board member.

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In tomorrow’s Federal Register, the Department of Labor’s Office of Labor-Management Standards (OLMS) will issue a notice of proposed rulemaking (NPRM) (pdf) on its plans to amend regulations under the Labor-Management Reporting and Disclosure Act (LMRDA) requiring labor organizations to file the annual financial disclosure Form T-1, (pdf) Trust Annual Report, about certain trusts in which they are interested. Unions use Form T-1 to disclose financial information about these trusts, such as assets, liabilities, receipts and disbursements. According to a summary of the NPRM, the DOL seeks to amend these regulations on the grounds that the current trust reporting requirement is overly broad and not necessary to prevent the circumvention and evasion of the Title II reporting requirements, which require labor organizations “to disclose its financial condition and operations.” In addition, the DOL considers separate trust reporting requirements as unnecessary, in part because the Department also proposes to return “subsidiary organization” reporting to the Form LM-2 reporting requirements, which it believes is necessary to satisfy the purposes of the LMRDA. Finally, the DOL takes the position that in interpreting the LMRDA’s definition of “labor organization,” the statute’s coverage does not include “intermediate bodies that are wholly composed of public sector organizations.”

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On February 2 at 4:00 pm, the Senate Committee on Health, Education, Labor and Pensions (HELP) will hold a hearing on the controversial nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). In December, the Senate returned the nomination to the White House for reconsideration after Sen. John McCain (R-Ariz.) put a hold on it. Instead of withdrawing the nomination, President Obama re-nominated Becker last week.

Many in Congress and the business community fear that Becker – who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations – would try to implement portions of the beleaguered Employee Free Choice Act (EFCA) through rulemaking or Board decisions. Now that EFCA’s chances of passage this term are greatly diminished by the new composition of the Senate, organized labor may look to the NLRB to advance its agenda. A HELP Committee vote could come as early as February 4. In October, the HELP Committee approved Becker’s nomination by a 15-8 vote.  At that time, the HELP Committee also approved the nominations of Mark Pearce and Brian Hayes by voice vote. It is believed that Democrats want to submit all three nominees for a full Senate vote as a package, a move that would place less scrutiny on Becker as an individual.

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President Obama’s State of the Union Address may be more notable for its omissions than its content. Not once in the hour and ten minute speech did Obama mention organized labor, even though a large portion of the Address was dedicated to job creation efforts. Claiming that jobs must be the “number one focus of 2010,” Obama outlined a number of initiatives to advance this aim, none of which directly promoted union membership.

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Scott Brown’s (R) astonishing win in last week’s Massachusetts special election was made possible, in part, by the state’s union members. According to an article in Politico, 49 percent of union members backed the Republican state senator, while 46 percent cast their vote in favor of Massachusetts Attorney General Martha Coakley (D). By electing Brown as the 41st Republican U.S. senator, organized labor dramatically diminished the chances that their number one legislative priority – the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560) – will pass Congress this year. Now that Senate Democrats no longer have a filibuster-proof majority, it is unlikely that this controversial and increasingly unpopular bill will become law.

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On Wednesday, President Obama re-submitted to the Senate his nomination of controversial candidate Craig Becker to be a member of the National Labor Relations Board (NLRB). Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April, and officially nominated him in July.  The Senate Health, Education, Labor and Pensions Committee approved Becker’s nomination – as well as those of Mark Pearce and Brian Hayes – in October.  The belief was that all three nominations would be presented to the Senate as a package, a move that many Republican lawmakers and members of the business community opposed, as doing so would limit the Senate’s ability to evaluate Becker on an individual basis. Becker’s divisive views regarding an employer’s role during a representation election campaign as well as the fear that he would be willing to use Board decisions to effectively institute elements of the proposed Employee Free Choice Act were likely factors causing Sen. John McCain (R-Ariz.) to put a hold on Becker’s nomination. Before the holiday recess, the Senate returned his nomination to the White House for reconsideration.

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A reported deal has been reached between the White House and union leaders regarding the proposed 40 percent excise tax on high cost (“Cadillac”) healthcare plans for inclusion in the final healthcare overhaul bill. This tax – first appearing in the Senate version of the legislation – is favored by President Obama, but has been heavily criticized by both House Democrats and organized labor.

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Speaking yesterday at the National Press Club, AFL-CIO president Richard Trumka predicted that the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560) would be passed in the first quarter of 2010, and signaled that union leaders were going to renew their efforts to push for this legislation. Trumka declined, however, to say whether he would support an amended version of the bill that lacked the “card check” provision allowing the National Labor Relations Board to certify the union as the exclusive bargaining representative if a majority of employees signed authorization cards. Rumors of a so-called “compromise” bill that omits this provision but retains the section calling for binding arbitration in the event a first contract is not reached within a specified period of time—in addition to provisions outlining shorter election periods and greater union access to the workplace during the campaign period—have been floating around for months. Business advocates have long considered these terms to be as problematic and intrusive for employers as the card check provision. So far, no revised version of EFCA has been introduced.

Although Trumka’s statement is a bold one, it is unclear how much Congressional support remains for this controversial bill, especially before midterm elections. In the months following its introduction in March 2009, a number of key senators publicly stated their opposition to EFCA’s impact on secret ballot elections, if not the entire bill itself. Whether these same lawmakers would support EFCA absent the card check provision remains to be seen.
 

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Although there has been no official White House announcement, The New York Times has reported that President Obama plans to re-nominate Craig Becker to be a member of the National Labor Relations Board (NLRB). On December 24, the Senate returned Becker’s controversial nomination to the President for reconsideration.  The choice of Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, has been heavily criticized by members of Congress as well as by business advocates. Becker supports passage of the Employee Free Choice Act (EFCA), and has opined that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”

If Obama sends his nomination back to the Senate, the confirmation process would begin again, and, presumably, face the same opposition as it did last year.

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Before the Senate adjourned for the holiday break, it returned to the President for reconsideration (pdf) the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). President Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April.  Becker was officially nominated in July.

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On Monday, three nursing associations officially merged to form the largest labor union for medical professionals in this country. The new National Nurses United (NNU) combines the members and financial resources from the California Nurses Association, the United American Nurses, and the Massachusetts Nurses Union. With an estimated 150,000 members, this new union will be able to wield a significant amount of influence over the medical industry and healthcare reform efforts.

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A final rule (pdf) slated for publication in tomorrow’s Federal Register will revoke the requirement that federal contractors inform employees of their rights regarding the payment of union dues or fees. On January 30, 2009, President Obama issued Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws that requires government contractors and subcontractors to post notices outlining employees’ rights under the National Labor Relations Act (NLRA). Executive Order 13496 also revokes Executive Order 13201 – Notification of Employee Rights Concerning Payment of Union Dues or Fees – issued by former President Bush on February 17, 2001. Executive Order 13201 had required that federal contractors post a notice to its employees informing them that: (1) they are not required to join or maintain membership in a labor union; and (2) that those who are not union members – but are nonetheless required to pay dues or fees pursuant to a union security agreement – can object to paying a portion of those dues or fees to support activities that are not related to collective bargaining, contract administration or grievance adjustment. The final rule deletes the portions of the Federal Acquisition Regulation (FAR) that require or refer to the union dues or fees notification requirements of the revoked Executive Order.

With respect to the mandate that contractors post notices outlining an employee’s rights under federal labor laws, the Department of Labor (DOL) in August issued a proposed rule that describes what these notices should include, which entities are covered, and explains the sanctions, penalties, and other remedies that may be imposed in the event of noncompliance. A final rule on these requirements has not yet been issued.

This entry was written by Ilyse Schuman.

Photo credit:  Boris Yankov

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Today, the Supreme Court released its opinion in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers And Trainmen General Committee of Adjustment, Central Region (pdf), which involved the ability to challenge a final decision by the National Railroad Adjustment Board (NRAB) under the Railway Labor Act (RLA). The Court declined to answer whether a final decision by the NRAB could be set aside for an alleged due process violation, instead affirming the Seventh Circuit’s granting of relief to the union challenging the NRAB’s dismissal of its arbitration petition on statutory grounds.

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As we reported on November 3 and 4, the National Mediation Board's (NMB) notice of proposed rule making (NPRM) seeking to change the 75-year old process by which union votes are counted in union representation elections under the Railway Labor Act (RLA) is moving full-steam ahead. Members of Littler Mendelson's transportation industry practice group attended the NMB's December 7, 2009 open meeting regarding the NPRM. Chairman Elizabeth Dougherty, Members Harry Hoglander and Linda Puchala, General Counsel Mary Johnson, and Associate General Counsel Kate Dowling were present, and interested parties had the opportunity to present their views on the proposed change to NMB election procedures. The NMB officials did not ask or answer questions or otherwise comment on any of the presentations.

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On Tuesday, the National Labor Relations Board (NLRB) released its year-end report detailing its summary of operations for fiscal year 2009. A copy of this report can be downloaded from the agency’s press release (pdf) on this subject. According to this report, while the agency’s caseload remained steady, union representation election petitions dropped dramatically from the previous year, while unfair labor practices increased slightly. Specifically, the total number of unfair labor practice (ULP) charges and representation petitions filed for FY 2009 came to 25,853, compared to 25,901 in FY 2008. Of the overall case intake, unfair labor practice case intake was 22,941, a 1.96 percent increase from the previous year. However, the total intake for representation cases this year equaled 2,912, a 14.4 percent decline from the previous year’s tally of 3,400. In addition, the NLRB conducted 1,690 initial representation elections in FY 2009, 395 fewer than in 2008, amounting to a nearly 19 percent decrease. The drop in petitions is likely due, at least in part, to the proposed Employee Free Choice Act (EFCA), which, if enacted as currently written, would make it substantially easier for unions to be certified as the employees’ collective bargaining representative. It is possible that unions are holding out hope for EFCA’s passage before initiating any new organizing drives.

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On Wednesday, Rep. Steve King (R-Iowa) re-introduced the National Right-to-Work Act (H.R. 4107).  The stated purpose of this bill is “to preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities.” Specifically, this bill would amend the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA) to repeal the provisions in these Acts that permit employers, pursuant to a collective bargaining agreement that is a union security agreement, to require employees to join a union as a condition of employment, and require the payroll deduction of union dues or fees as a condition of employment.

Identical bills were introduced in the House and Senate during the 109th and 110th Congresses, but failed to gain sufficient traction. The current bill has been referred to the House Committee on Education and Labor.

Photo credit:  YanC

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The Department of Defense (DoD) has adopted without change an interim rule that provides whistleblower protections for DoD contractor employees. The interim rule, issued on January 15, 2009, implemented portions of the National Defense Authorization Acts for Fiscal Years 2008 and 2009 that added these whistleblower rights and protections. Specifically, the added protections prevent government contractors from discharging, demoting, or otherwise discriminating against employees as a reprisal for disclosing to government officials information regarding waste or mismanagement, danger to public health or safety, or a violation of law related to a DoD contract.

The interim rule expanded the types of information covered by existing whistleblower protections, in addition to the categories of government officials to whom the information could be reported without reprisal. The rule also established time periods in which the Inspector General and agency head must act on the employee’s complaint of a whistleblower violation, and allows the employee to bring a claim in federal court once he or she has exhausted all administrative remedies. Pursuant to the new rule, all solicitations and contracts must include a clause informing employees of their whistleblower rights.

These requirements became final as of November 19, 2009.

Photo credit:  Lkmorlan

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On the heels of its Tuesday announcement of a proposal to accommodate organized labor’s wishes by radically changing the way votes are cast and counted in airline and railroad union elections, the National Mediation Board (NMB) has now scheduled a meeting (pdf) on the subject to take place December 7, 2009. The stated purpose of the meeting is to supplement the comment procedure outlined in the Notice of Proposed Rulemaking by “providing another opportunity for interested persons to provide their views to the Board on this important matter.”

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On Tuesday, the National Mediation Board (NMB) published in the Federal Register a proposed rule (pdf) to amend its representation election procedure. Upsetting decades of settled policy, Members Harry Hoglander and Linda Puchala, former union officials, have launched a full-court press intended to make it easier for labor organizations to expand union membership in the air and rail industries.

Under the existing and well-settled approach, a majority of employees eligible to vote in representation elections determines the outcome of the election. So, in effect, employees who chose not to participate are counted as “no union” votes. The proposed rule would change this policy to base the voting outcome on the majority of those who actually vote, as is the practice in non NMB-governed industries.

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The U.S. Supreme Court has agreed to decide whether the National Labor Relations Board (NLRB) has the authority to decide cases with only two sitting members. The Court has granted a petition to review the decision in New Process Steel v. National Labor Relations Board (08-1457) (pdf), in which the Court of Appeals for the Seventh Circuit upheld a two-member Board decision against a challenge claiming that two members were insufficient to constitute a quorum of the Board and therefore could not decide cases. The same day this case was decided, the U.S. Court of Appeals for the District of Columbia Circuit reached the opposite conclusion in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), finding that the two-member panel did not constitute a quorum. The First Circuit has weighed in on this issue as well, upholding the two-member panel’s authority to issue orders in Northeastern Land Services, Ltd. v. NLRB (pdf).  

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Despite a great deal of protest from several Republicans and the business community, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 15 to 8 to approve the nominations of Craig Becker, Mark Pearce, and Brian Hayes to be members of the National Labor Relations Board (NLRB). President Obama named Pearce and Becker, both Democrats and widely considered pro-labor, as nominees on April 24 of this year. Hayes, a Republican and Senate committee staff member, was selected on July 9. Now that these nominations have cleared the HELP committee, they will be sent to the Senate floor as a package for final approval.

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The Senate approved by a vote of 68 – 30 an amendment (S.A. 2588) to the defense appropriations bill (H.R. 3326) that would prohibit federal contractors or subcontractors receiving defense department funds from forcing their employees or independent contractors to sign, as a condition of employment, agreements to arbitrate certain employment-related claims. Specifically, the amendment bans contractors or subcontractors at any tier that receive funds from the appropriations bill from enforcing mandatory, pre-dispute agreements to arbitrate “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” The provisions of this amendment would not apply to employment contracts that are not enforceable in this country.

The appropriations bill including the above amendment was approved by a vote of 93-7. This version of the bill will now need to be reconciled with that approved by the House in July.

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On Tuesday, the Senate is scheduled to vote on an amendment (S.A. 2588) to the Defense Appropriations Bill (H.R. 3326) that would effectively prevent federal contractors or subcontractors at any tier that receive funding under the appropriations bill from using mandatory pre-dispute binding arbitration agreements with their employees or independent contractors in civil rights and sexual harassment matters.  Introduced by Senators Al Franken (D-Minn.) and Mary Landrieu (D-La.), the amendment would insert the following provision into the appropriations bill:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.
 

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On Tuesday Sen. Arlen Specter (D-PA) released some long-awaited details of an amended version of the Employee Free Choice Act (EFCA) that he believes “will meet labor’s objectives” and garner sufficient Congressional support. Speaking before the AFL-CIO Constitutional Convention, Specter predicted that a re-vamped version of EFCA will be passed this year. As reported in The Washington Post, Specter outlined the provisions of this so-called “compromise” bill following the AFL-CIO convention. Notably, Specter said the amended bill omits the controversial “card check” provision that would have allowed the National Labor Relations Board (NLRB) to certify a union as the exclusive bargaining representative based on a majority of signed authorization cards. Instead, according to the Post article, the amended EFCA:

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Labor Secretary Hilda Solis told attendees of the AFL-CIO Constitutional Convention in Pittsburgh today that she will work with the White House to “make the strongest case possible for the Employee Free Choice Act” and reiterated her position that the Department of Labor (DOL) “is once again back in the enforcement business.”  Her speech also outlined recent DOL enforcement efforts, and proposed regulations to reform the H-2A temporary agricultural worker program.

With respect to DOL enforcement, Solis announced that the agency is “adding nearly 670 additional investigators, inspectors, and other program staff, returning our worker protection efforts to a level not seen since 2001. So far, these resources has allowed the Wage and Hour Division to ensure that contractors on federal stimulus projects pay their workers the prevailing wage rates that they are entitled to.” Solis emphasized that worker safety is a chief concern, noting that since July, the Occupational Safety and Health Administration (OSHA) has completed 689 inspections and issued nearly 1,100 violations resulting in $1.6 million in fines.

Solis touched on immigration reform as well, explaining that the DOL is proposing to restructure the H-2A visa program. According to Solis, the proposed regulations “will reverse what I believe are unjust wage issues and working conditions for vulnerable U.S. and temporary foreign workers,” and “will ensure that before we import temporary workers to meet some labor shortages, U.S. workers have first dibs.”

As for the beleaguered Employee Free Choice Act (EFCA), Solis claimed that “it’s not enough to have fair wages and a safe workplace – workers also need a voice on the job!” To that end, Solis pledged to support EFCA, as well as the use of Project Labor Agreements for large federally funded projects.

President Obama is scheduled to speak at the AFL-CIO convention tomorrow.
 

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When Congress resumes next week, consideration of the Employee Free Choice Act (EFCA) will likely be pushed aside in favor of healthcare reform. According to an article in the Las Vegas Review-Journal, Senate Majority Leader Harry Reid (D-Nev.) told members of the Las Vegas Chamber of Commerce that senators “have too many other things on our plate” to take up the controversial “card check” bill anytime soon.

As reported in The Hill’s Blog Briefing Room, a few days earlier AFL-CIO Secretary-Treasurer Richard Trumka similarly acknowledged that any deliberation on the divisive bill would not take place until after health reform is dealt with. During a web chat on the blog firedoglake, Trumka claimed that the “President/and [Rahm] Emanuel have both said they dont [sic] intend to bring Employee Free Choice Act up until Health Insurance Reform is done. Which gives us an additional reason to do Health Insurance Reform now!”

While no surprise, these statements are significant in that they are among the first public acknowledgements by supporters that consideration of EFCA will be delayed. However, given President Obama’s upcoming speech at the September AFL-CIO convention, further developments are possible.

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Senators Judd Gregg (R-NH) and Edward Kennedy (D-MA) have reintroduced a bill that would provide firefighters, police officers, and emergency medical personnel with collective bargaining rights in states and localities that do not currently provide them. The Public Safety Employer-Employee Cooperation Act (S. 1611) would establish minimum standards for collective bargaining rights for public safety officers, and give the Federal Labor Relations Authority (FLRA) the power to regulate and enforce these rights. The House of Representatives introduced companion legislation (H.R. 413) on January 9 of this year.

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Pursuant to President Obama’s Executive Order (EO): Notification of Employee Rights Under Federal Labor Laws issued on January 30, 2009, the Department of Labor (DOL) has published in today’s Federal Register a proposed rule requiring government contractors and subcontractors to post notices outlining employees’ rights under the National Labor Relations Act (NLRA). The proposed rule describes what these notices should include, which entities are covered, and explains the sanctions, penalties, and other remedies that may be imposed in the event of noncompliance.

The EO required that most federal departments and agencies include in their contracts a provision requiring contractors and subcontractors to post “in conspicuous places in and about [their] plants and offices where employees covered by the [NLRA] engage in activities relating to the performance of the contract,” notice of an employee’s rights under federal labor law. The EO specifically exempts two types of federal contracts from triggering the new posting: collective bargaining agreements and purchases under the simplified acquisition threshold, currently $100,000. The proposed rule establishes standards and procedures for implementing this EO, to be codified in subchapter D, Part 471 of Volume 29 of the Code of Federal Regulations.

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Even though the highly controversial Employee Free Choice Act (EFCA) has lost support and one of its main components – card check recognition – reportedly is on the verge of being eliminated, the State of Hawaii has chosen another path and has enacted a bill resembling the EFCA in almost every respect. On July 15, the state overrode Governor Linda Lingle’s veto and passed House Bill 952, a measure that amends the Hawaii Employment Relations Act (HERA) by allowing the state’s Labor Relations Board to certify the results of a representation election based on a majority of signed authorization cards, mandates arbitration in the event a first contract is not reached within a specified period of time, and imposes civil penalties for unfair labor practices. While this bill is more limited in scope than the federal EFCA (H.R. 1409, S. 560) due to the fact that it only impacts certain employers, mainly agricultural with an annual revenue over a certain threshold, it will surely impact a number of private-sector as well as possibly Hawaii state employers that are not covered by the National Labor Relations Act. In addition, organized labor will no doubt use Hawaii as an example to push for the enactment of similar measures in other states.

Employees covered by this measure will be able to bypass a secret ballot union representation election if the state’s Labor Board determines that a majority of employees have signed valid authorization cards in favor of representation. After a union is certified and issues a request to collectively bargain, the Hawaii employer must commence bargaining with 10 days. If after 90 days the parties remain at an impasse, either may request conciliation. If after an additional 20 days (30 under the proposed federal EFCA) the parties still cannot reach an agreement, the matter will be referred to an arbitrator whose decision is binding for two years. The Hawaii mini-EFCA also imposes fines of up to $10,000 per unfair labor practice that is committed willfully or repeatedly. It is becoming clear that Congress will not follow Hawaii’s lead and is already moving away from consideration of the card check provisions of EFCA. However, for organized labor and certain employers in Hawaii, labor relations is entering a whole new era.

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The Senate on Friday confirmed by voice vote the nomination of Harry Hoglander to be a Member of the National Mediation Board (NMB). The three-member NMB is the independent federal agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively.

Hoglander has been a member of the NMB since August 6, 2002, and has twice served as its chairman. A former commercial airline and U.S. Air Force pilot, Hoglander also served as the executive vice-president of the Airline Pilots Association. In addition, Hoglander is an attorney and member of the Florida Bar Association who worked as a legislative specialist for Rep. John Tierney (D-Mass.) on matters concerning transportation, labor, defense and veterans affairs. Hoglander’s term is set to expire on July 1, 2011.
 

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A recent order issued by the National Labor Relations Board (NLRB or Board) may herald the agency’s handling of other petitions seeking to resolve questions of union representation brought about by the UNITE HERE / Workers United split. The Board’s Order, issued July 21, 2009, affirmed the Regional Director’s decision issued July 12 dismissing the employer’s petition. Although the Board’s apparent adoption of a unified response to petitions filed in the wake of the UNITE HERE / Workers United split may provide some guidance as to how the Board will address these questions in the future, its chosen course of action avoids any discussion of whether a schism in the union occurred, and should lay the groundwork for potential federal court challenges.

In the case at issue, the employer, Royal Laundry, was faced with competing claims by UNITE HERE and the Western States Regional Joint Board (WSRJB) to represent its employees. Each union claimed to be the legitimate union representative of the bargaining unit. Prior to this, the employees had been members of Local 75 of UNITE HERE, but their executive board chose to endorse a petition to disaffiliate from UNITE HERE and join other Joint Boards and Locals to form a new union, Workers United. In the process, the local’s executive board retained its shop stewards and Joint Board staff representatives.

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In an attempt to save the Employee Free Choice Act (EFCA) from filibuster and potential failure, a handful of Democratic Senators have reportedly agreed to remove the highly contentious “card check” from the current version of the bill (H.R. 1409, S. 560).  According to an article published in The New York Times, the card check provision would be replaced by a shorter campaign period prior to an election, but other controversial EFCA measures would remain. Specifically, the article notes that expected EFCA revisions would require union elections to be held in as few as 5 or 10 days after 30 percent of workers sign authorization cards favoring union representation. In addition, lawmakers are reportedly considering provisions allowing union organizers to access company property during an organizing campaign, and preventing employers from requiring employees to attend employer-conducted information sessions often dubbed “captive audience” meetings. Since a revised EFCA bill has not yet been unveiled (much less negotiated or challenged), it is uncertain at this point which of these conditions, if any, will be included.

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On Tuesday, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) published in the Federal Register (pdf) a proposed rule implementing President Obama’s Executive Order (EO) encouraging the use of Project Labor Agreements (PLAs). Issued on February 6 of this year, EO 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf) declares it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, this EO states:

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On July 10, the Office of Management and Budget (OMB) sent a memorandum (pdf) to the heads of executive departments and agencies encouraging the use of Project Labor Agreements (PLAs) until a final rule implementing President Obama’s Executive Order on this subject is implemented. On February 6 of this year, Obama issued Executive Order (EO) 13502: Use of Project Labor Agreements for Federal Construction Projects (pdf), which declared it the policy of the federal government “to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects . . .” Specifically, the EO stated, in pertinent part:

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President Obama has announced his nomination of Brian E. Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), to be a Member of the National Labor Relations Board (NLRB or Board). If confirmed, Hayes would join current member Peter Schaumber as the second Republican to serve on the five-member Board. Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the opposing party. In April, Obama named Democrats Craig Becker and Mark Pearce as his other picks to fill the three vacant seats. Current NLRB Chairman Wilma Liebman is also a Democrat. On July 9, the White House sent the nominations of Becker, Pearce and Hayes to the Senate for confirmation.

According to information provided by the White House announcement, before serving as a Senate staffer, Hayes worked for 25 years in private practice as a management-side labor and employment attorney. Prior to entering the private sector, Hayes clerked for the Chief Judge of the National Labor Relations Board and then as Counsel to the Chairman of the NLRB. While working in private practice, Hayes taught classes in Labor Law, Collective Bargaining, Arbitration and Employment Litigation at Western New England Law School. Has earned his undergraduate degree at Boston College and his law degree from Georgetown University Law Center.

It is not yet clear when confirmation proceedings will occur, or whether the three pending nominees will be considered as a package or individually.

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On Monday, President Obama announced his intent to nominate George H. Cohen to serve as the director of the Federal Mediation and Conciliation Service (FMCS), the independent federal agency charged with, among other things, handling the arbitration and mediation of labor disputes and contract negotiations. If the Employee Free Choice Act passes with its current first contract interest arbitration provisions intact, Cohen presumably would be charged with implementing those provisions as well.

According to biographical information published by the Peggy Browning Fund, a nonprofit corporation dedicated to educating law students and providing work experience in the area of workers' rights, Cohen practiced for 40 years as a well-respected union-side labor lawyer. During this period, he argued five cases before the U.S. Supreme Court involving matters ranging from collective bargaining to workplace safety.

Before being named as Obama’s pick for FMCS Director, Cohen worked as a mediator, and currently is a member of the Mediation Panel of the U.S. Circuit Court of Appeals for the D.C. Circuit. Prior to working in the private sector, Cohen served as an attorney advisor and appellate attorney for the National Labor Relations Board, and – according to the aforementioned bio – is credited with “help[ing] shape the progressive, union and worker friendly agenda of the ‘Kennedy Board.’” Cohen has also served as the Union Co-Chair of the first American Bar Association (ABA) Committee on Sports and Entertainment Law and the first ABA Committee on the Occupational Safety and Health Law. Additionally, Cohen has taught the Art of Collective Bargaining among other labor-related courses as an adjunct professor at Georgetown Law School.

Cohen received his undergraduate and law degrees from Cornell University and its Law School, and an LLM degree from Georgetown Law.

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Senator John Isakson (R-Ga.) has introduced legislation that would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for federal funding under the “Green Jobs” program. The Energy Independence and Security Act of 2007 established an energy efficiency and renewable worker training program through a provision known as the Green Jobs Act. The Green Jobs Improvement Act (S. 1238) would permit access to federal funding for these programs by removing the mandate that eligible entities “partner with labor organizations.” In essence, if this bill is enacted any contractor – regardless of union affiliation – with an accredited training program would be able to compete for federal grants under the Green Jobs Act. On April 22, 2009, Rep. John Kline (R-Minn.) introduced a companion bill (H.R. 2026) in the House.

This bill has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

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Legislation introduced by Rep. Steve King (R-IA) and Sen. Jim DeMint (R-SC) would amend the National Labor Relations Act (NLRA) to allow employers to refuse to hire undercover union organizers, commonly known as “salts.” The Truth in Employment Act (H.R. 2808, S. 1227) was introduced with 19 co-sponsors in the House, and three in the Senate. Specifically, this bill would add the following provision to Section 8(a) of the NLRA:

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A bill introduced in both the House and Senate would amend the National Labor Relations Act (NLRA) to permit an employer to award individual employees with financial incentives beyond the pay or compensation level specified in a collective bargaining agreement (CBA). Introduced by Senator David Vitter (R-LA) and Rep. Tom McClintock (R-CA), the Rewarding Achievement and Incentivizing Successful Employees Act or the “RAISE Act” (H.R. 2732, S. 1184) would add the following provision to section 9(a) of the NLRA:

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Last week Rep. Joe Wilson (R-S.C.) introduced the Freedom From Union Violence Act of 2009 (H.R. 2537), a bill that would impose a fine of up to $100,000 and/or a prison sentence of up to 20 years for anyone who commits an act of violence or extortion during a labor dispute. This legislation amends section 1951 of title 18 of the United States Code, an anti-racketeering measure more commonly known as the Hobbs Act. The Hobbs Act is a federal law prohibiting actual or attempted robbery or extortion affecting interstate or foreign commerce. According to a press release issued by Wilson’s office, a loophole in the Hobbs Act permits “violence and intimidation on behalf of labor unions . . . if it is ruled that such coercion was to further a ‘legitimate’ union objective.” Wilson further claims that this loophole “opens the door for extortion and violence against American workers.”

The Freedom From Union Violence Act would close this loophole and include a provision stating that:

whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section, shall be fined not more than $100,000, imprisoned for a term of not more than 20 years, or both.

The bill explicitly exempts conduct that is “incidental to otherwise peaceful picketing during the course of a labor dispute.”

This bill has been referred to the House Committee on the Judiciary.
 

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After the Employee Free Choice Act’s (EFCA) momentum seemed to come to a screeching halt when Sen. Arlen Specter (D-Pa), along with other Democrats, announced last month that they would not vote for cloture on the bill, efforts to revive the measure are mounting. Yesterday, Sen. Tom Harkin (D-Iowa) – one of EFCA’s chief sponsors – said that he is “actively” talking with those Democratic senators who have expressed reservations about the “card check” legislation to try to come up with a compromise bill that he could take directly to the Senate floor.  In the alternative, Harkin claimed that he would move forward with the original bill sometime in June. In response, business groups have reiterated their position that any so-called compromise would be unacceptable.

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The U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations Board (“NLRB” or “Board”) acted without authority in entering an order against a company for alleged unfair labor practices, as the two-member panel did not constitute a quorum as required by the National Labor Relations Act (NLRA). In Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), the only issue before the appellate court was whether the Board had the statutory authority make its decision, not whether its findings, conclusions and remedies were justified.

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The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form. Form LM-30, which had been revised in 2007, requires union officers and employees (except employees performing exclusively clerical or custodial services) to report certain financial transactions and financial interests in order to make public any actual or potential conflict between their personal financial interests and their obligations to the labor organization and its members. The proposed rulemaking will focus on the changes made by the 2007 regulatory revisions which, the agency claims, dramatically altered the old Form LM-30 and instructions that had not substantially changed in over 40 years.

The new LM-30 raised the ire of organized labor, as it imposed new requirements and expanded the form from two to nine pages. The AFL-CIO filed a lawsuit – AFL-CIO v. Chao – in the U.S. District Court for the District of Columbia to enjoin the use of the new form, alleging that the DOL lacked the authority to impose the new rule, and that the form’s expanded requirements are arbitrary and capricious. This case is still pending. The revised rule will address the scope and extent of the reporting obligations, and the questions raised by the recent litigation. Until these questions are resolved, the OLMS will accept either the old Form LM-30 or the new one for compliance purposes.

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Labor advocate and founding executive director of the American Rights at Work (ARW) Mary Beth Maxwell is joining the Department of Labor (DOL) as a senior advisor to Secretary of Labor Hilda Solis. According to an ARW press release, Maxwell will work with the White House Task Force on Middle Class Working Families, the Obama Administration’s new initiative aimed at “restoring labor standards, improving workplace safety, enhancing work and family balance, protecting retirement security, and helping protect middle- and working-class incomes.”

Maxwell has been a vocal advocate of the beleaguered Employee Free Choice Act (EFCA), and was widely rumored to be Obama’s pick to serve as Secretary of Labor. Maxwell is most known for her work at the ARW, a nonprofit advocacy organization begun in 2003 whose mission is to “promote the freedom of workers to join a union and bargain collectively.” Solis herself has ties to the ARW, having once served as the organization’s treasurer and board member. Prior to working at the ARW, Maxwell served as National Field Director for Jobs with Justice, an organization affiliated with the Service Employees International Union with which Secretary Solis is closely aligned. Her other positions have included acting as Deputy Field Director for NARAL, directing the pro-choice organization’s electoral, legislative, media, and fundraising training programs for local affiliates. Maxwell has also worked as Field Director for the United States Student Association.
 

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President Obama has announced his plans to nominate Craig Becker and Mark Pearce as board members of the National Labor Relations Board (NLRB or Board). The five-member Board serves as a quasi-judicial body in deciding cases under the National Labor Relations Act (NLRA). Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the other party. Becker and Pearce, along with Chairwoman Liebman, would constitute the three Democratic-selected seats. Assuming President Obama follows precedent, only one Republican Board seat will remain vacant. When and how that seat will be filled is not clear.

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Rep. John Kline (R-Minn) has introduced legislation that would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for Federal funding under the “Green Jobs” program. The Energy Independence and Security Act of 2007 (H.R. 6) established an energy efficiency and renewable worker training program through a provision known as the Green Jobs Act. The Green Jobs Improvement Act (H.R. 2026) would permit access to these programs by removing the mandate that eligible entities “partner with labor organizations.”

This bill has been referred to the House Committee on Education and Labor.
 

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In the weeks since a litany of Senators recently spoke out against the Employee Free Choice Act (EFCA), organized labor has nonetheless complained that it deserves an up-or-down vote on whether to take away employees’ right to vote in secret on unionization. With little hope that these Senators will change their position, Andy Stern, head of the Service Employees International Union (SEIU), has now acknowledged that the prospects for EFCA’s passage look grim, indicating the first large fissure in organized labor’s efforts to pass EFCA. In an interview with The Washington Post, admitting a strategic error on the part of EFCA supporters, Stern intimated that the version of EFCA introduced in the Senate – which contains, among other things, the infamous “card check” and mandatory arbitration provisions – was introduced in this form to mirror the companion bill introduced in the House, and that this strategy might not have been the best one to ensure EFCA’s passage. According to the article, Stern said:

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Senator Richard Durbin (D-IL) has reintroduced a bill in the Senate designed to use the tax code as a carrot to encourage U.S. companies to create and maintain domestic jobs with specific pay and benefits standards and maintain neutrality toward union organizing efforts. The Patriot Employers Act (S. 829) was initially introduced by Durbin – and co-sponsored by former Senator Obama – in 2007. While the current bill has not yet been released for publication, it is believed to contain the same provisions set forth in the earlier version. That bill would provide “Patriot Employers” with a 1 % tax credit if they do the following:

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Sen. Arlen Specter’s (R-Pa.) announcement that he would not vote for cloture on the Employee Free Choice Act (EFCA) now appears to have only been a prelude to a rapid decline in support from Democrats who formerly supported the Act, including some unlikely defectors. Recently, Sen. Dianne Feinstein (D-Calif.) – who cosponsored the same legislation in 2007 – announced that due to the faltering economy, she would not support EFCA in its current form. Instead, she claimed – as did Specter – that she would support a compromise measure. According to an article by the Los Angeles Times, Feinstein said: “[t]his is an extraordinarily difficult economy, and feelings are very strong on both sides of the issue. I would hope there is some way to find common ground that would be agreeable to both business and labor.”  It should be noted that both the business community and organized labor are on record as strongly opposing any compromise on EFCA.

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In an opinion released today, the U.S. Supreme Court in 14 Penn Plaza L.L.C v. Pyett held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate Age Discrimination in Employment Act (ADEA) claims is enforceable as a matter of federal law.

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Pursuant to one of President Obama’s executive orders issued on January 30, 2009, the Department of Labor’s (DOL) Office of Labor-Management Standards is rescinding regulations requiring federal contractors and subcontractors to post notices informing employees of their rights to refrain from joining a union, otherwise known as Beck notices.  The executive order at issue – Notification of Employee Rights Under Federal Labor Laws (number 13496) – requires such contractors to instead post notices explaining employees’ rights to join unions and bargain collectively under the National Labor Relations Act. Executive Order 13496 also revokes Executive Order 13201 issued under the Bush administration, which mandated that federal contractors post Beck notices at the worksite.

Because Obama’s executive order revokes Bush’s order, the regulations implementing that order are no longer in force or effect. Therefore, the DOL is rescinding these regulations through a final rule, and not a proposed rule, which would necessitate public comment.

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A report released last week by conservative think tank Manhattan Institute for Policy Research argues that the Employee Free Choice Act’s (EFCA) mandatory arbitration provision equates to a government takeover of the private sector. According to the report, “EFCA seeks in a few short paragraphs to erect a labor regime whose untested provisions and coercive power will add countless business casualties to our already suffering economy.” In particular, the report laments that public debate on EFCA has centered on the card check provisions, and “has thus glossed over the synergistic risks when it is married to a program of compulsory arbitration.”

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The following summarizes some federal agency happenings this week:

Phyllis Borzi is Tapped to Serve as Assistant Secretary of DOL’s EBSA

President Obama has nominated Phyllis C. Borzi to serve as the Assistant Secretary of Labor for the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA). The EBSA is the organization within the DOL whose mission it is to educate and assist the 150 million Americans covered by more than 679,000 private retirement plans, 2.5 million health plans, and similar numbers of other welfare benefit plans; as well as plan sponsors and members of the employee benefits community.

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In a move sure to be welcomed by the business community, Senator Arlen Specter (R-Pa) has announced that he opposes the Employee Free Choice Act (EFCA) at this time, and will vote against cloture.  Speaking on the Senate floor, Specter claimed that given the current economic climate, “[t]his is a particularly bad time to enact Employee Free Choice legislation. . . I have made up my mind. Knowing I will not support cloture on this bill, senators may decide to move on and amend the NLRA [National Labor Relations Act] as I have suggested . . . ” Specter suggests amending the NLRA to require quicker elections, easier access by unions to employees, and heftier penalties for employer unfair labor practices, among other measures. He argues that this is “a better way to expand labor's clout in collective bargaining” as opposed to eliminating the secret ballot and instituting mandatory arbitration in the event a first contract is not reached within a specified period of time.

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In the wake of heavy criticism and a lawsuit filed by seven major airline companies, the Federal Aviation Administration (FAA) has decided to revoke its revised pilot and flight attendant rest rules for long-range flights. Instead, the agency announced it will work with airlines to study safety measures over the coming year.

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President Obama has chosen Joseph Szabo to head the Federal Railroad Administration (FRA). The FRA is the agency within the U.S. Department of Transportation charged with, among other things, promulgating and enforcing rail safety regulations, conducting research into equipment design and operating practices, and consolidating government support of rail transportation activities.

Szabo, a fifth-generation railroad worker, is currently the state legislative director in Illinois for the United Transportation Union (UTU), the nation’s largest rail union. In 1984 Szabo was elected as secretary/treasurer of UTU Local 1290, and eventually became the local’s delegate and legislative representative. He worked his way up the union ladder to become vice chairman of the UTU Illinois legislative board in 1991, and was eventually elected to serve as the union’s state director in 1996. In 2006, Szabo was appointed a vice president of the Illinois AFL-CIO, and in October 2008 was elected to a four-year term. Since January 15, 2009, Szabo has worked on an interim assignment in the UTU’s National Legislative Office in Washington, D.C., serving as Alternate National Legislative Director.

In response to Obama’s nomination of Szabo, UTU International President Mike Futhey stated that Szabo is “the first FRA administrator to come out of the ranks of rail labor. It is a validation that this Obama administration is a friend of organized labor.”
 

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The Department of Labor has made available to employers a nationwide database of job candidates with disabilities.  The database currently lists 1,921 candidates seeking employment in a variety of fields. Private sector, nonfederal government and nonprofit employers can request unlimited searches by contacting the DOL’s Employer Assistance and Recruiting Network toll-free at (866) 327-6669.

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In addition to other problems with the Employee Free Choice Act (EFCA) (H.R. 1409, S. 560), this controversial labor bill is also inconsistent with international law, so claims a letter sent to congressional leaders by the United States Council for International Business (USCIB) and the United States Chamber of Commerce (“U.S. Chamber”).  According to the letter, EFCA’s modification of the National Labor Relations Act (NLRA) to institute a card check union representation recognition process that potentially displaces the secret ballot election and forces parties to engage in mandatory binding arbitration in the event an initial collective bargaining agreement is not reached within a set period of time “contradict[s] principles of international labor law, as they have been defined by the International Labor Organization (ILO).”

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Legislation introduced last week would allow private university students who serve as teaching and research assistants to form or join a union. The Teaching and Research Assistant Collective Bargaining Rights Act (H.R. 1461) would amend the National Labor Relations Act (NLRA) by including such students in the definition of “employee.” Specifically, the bill would add the following provision:

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President Obama has nominated Linda Puchala to hold a seat on the National Mediation Board (NMB). The three-member NMB is the agency charged with overseeing collective bargaining and representation under the Railway Labor Act (RLA), which provides employees in the aviation and railroad industries the right to organize and bargain collectively. Puchala would take the seat currently held by Bush-appointee and NMB Chair Read Van de Water.

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The day unions have been anticipating – and businesses have been dreading – has arrived. The Employee Free Choice Act (EFCA) was formally introduced in the 111th Congress today in both the House and Senate, although with noticeably fewer co-sponsors this time around. The Senate bill, sponsored by Senators Tom Harkin (D-Iowa) and Ted Kennedy (D-Mass.), was introduced with 40 co-sponsors, compared to 46 in 2007. In the House, Rep. George Miller (D-Calif.) introduced a companion bill with 223 co-sponsors, 7 fewer than when the bill was originally introduced last session. The discrepancy is compounded by the fact that Democrats gained seats in both houses in the past election, and may be a harbinger of the fight to come.

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While much of the labor-related legislative focus has been on the re-introduction of the Employee Free Choice Act (EFCA), another bill has slipped virtually unnoticed into the halls of Congress. The National Labor Relations Modernization Act (NLRMA) (H.R. 1355), introduced by Rep. Joe Sestak (D-Pa.), would amend the National Labor Relations Act (NLRA) to require employers to provide unions with equal access to employees prior to a representation election, increase employer penalties for unfair labor practices, and expedite the collective bargaining process. This bill resembles EFCA in many ways, but lacks the highly-contentious “card check” provision that obviates the need for a secret ballot election. While the supporters and opponents of EFCA continue to express a stiff resistance to any change in their relative positions – either EFCA as written or not at all – the NLRMA is the first attempt at striking a compromise position.

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With rumors swirling that the Employee Free Choice Act (EFCA) may be introduced as early as tomorrow, both union and business interests have marshaled their forces in Washington. Both sides plan to descend on Congress this week in an effort to sway the remaining Senate holdouts. It seems increasingly likely that EFCA will be introduced in the Senate first, as support in the Senate is more tenuous than that in the House. Unions will have their work cut out for them, however, as even EFCA supporters have begun to acknowledge that gaining enough votes to invoke cloture – and thus avoid the inevitable filibuster – has become something of an uphill battle.

On ABC’s This Week, Sen. Claire McCaskill (D-Mo.) admitted: “I’m not sure that we have the votes” for cloture. Among those with wavering support are Sens. Blanche Lincoln (D-Ark.) and Mary Landrieu (D-La.), who will no doubt be prime targets for this week’s lobbying campaign. Democratic senators in right-to-work states also face pressure from their business constituents to oppose the bill. EFCA fell nine votes short in the Senate when it was first introduced in 2007, so every vote is critical. Although EFCA’s passage in the House is virtually guaranteed, some Democratic representatives have already voiced their opposition. On Friday, Rep. Dan Boren (D-Okla.) became the first House Democrat to openly declare his position against EFCA. More could follow. Until then, it will certainly be an interesting week. Among the possibilities to watch for is the potential for negotiations that could transform EFCA into something that might convince middle of the road Senators to support it.

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The initial predictions that the Employee Free Choice Act (EFCA) would be introduced in Congress within the first 100 days of the Obama administration may yet prove to be true. Earlier this year, as interest and attention turned to our failing economy and emergency rescue measures, many revised their estimates, forecasting that EFCA would not make its debut until this spring at the earliest. It now appears, however, that EFCA may be reintroduced as soon as Monday.  According to a number of sources, including the National Association of Manufacturer’s blog ShopFloor and the Los Angeles County Federation of Labor, AFL-CIO, rumor has it that Rep. George Miller (D-Calif.) and Sen. Ted Kennedy (D-Mass.) are expected to introduce EFCA – also known as the “card check” legislation – on March 9, 2009.  If this rumor is accurate, Monday will spark the beginning of what promises to be a highly contentious legislative battle.

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On February 26, President Obama unveiled his proposed $3 trillion budget. A detailed summary can be found on the White House website. (pdf)  As expected, the budget includes increased funding for various agencies tasked with oversight of employers.

Of interest to employers, highlights of this proposal include the following:

• Funding of $110 million to continue expansion of the E-Verify program.
• Projected DOL discretionary funding increases of $12.7 billion for 2009, and $13.3 billion for 2010.
• Increased funding for the Occupational Safety and Health Administration (OSHA), “enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers.”
• Increased enforcement resources of the Wage and Hour Division “to ensure that workers are paid the wages that are due them.”
• Increased funding for the Office of Federal Contract Compliance Programs.
• The establishment of automatic workplace pensions. Under this plan, a system of automatic workplace pensions would operate alongside Social Security.  Employees would be automatically enrolled in workplace pension plans.  Employers that do not currently offer a retirement plan would be required to enroll their employees in a direct-deposit IRA account that is compatible with exiting direct-deposit payroll systems. Employees would be given the ability to opt out of this program.
• The provision of $145 million to the Justice Department’s Civil Rights Division to strengthen civil rights enforcement against racial, ethnic, sexual preference, religious and gender discrimination.
   

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Organized labor has repeatedly and forcefully stated that it will push for the reintroduction of the Employee Free Choice Act (EFCA) as soon as possible. As previously discussed, EFCA could fundamentally alter the way employers do business in this country. To further expound upon EFCA’s likelihood of enactment and in what form, we invited resident labor expert Bob Battista, a Shareholder in Littler’s Washington, DC office, to answer some questions. In addition to serving as Chairman of the National Labor Relations Board for five years, Mr. Battista has practiced labor and employment law for nearly four decades.

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In a preemptive move in anticipation of the re-introduction of the Employee Free Choice Act (EFCA), a group comprised of both House and Senate Republicans have introduced legislation aimed to preserve secret ballot union elections. The Secret Ballot Protection Act (SBPA) was introduced in the Senate by Jim DeMint (R-S.C.), Chairman of the Senate Steering Committee, and Mike Enzi (R-Wyo.), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee, with 16 co-sponsors. In the House, a companion bill was introduced by Reps. John Kline (R-Minn.) and Tom Price (R-GA), with 101 co-sponsors.

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President Obama has selected academic and former Department of Labor (DOL) policy aide Seth Harris to serve in the second-highest position within the DOL. If confirmed as deputy secretary, Harris will be yet another alum from the Clinton era to join the new administration.

Prior to his nomination, Harris served as an agency working group leader on President Obama’s transition team. Harris was selected as a transition team member while working as a professor and director of the Labor and Employment Law Program at New York Law School. Harris spent nearly seven years serving under the Clinton administration as a senior advisor on policy, legal management, and strategy issues for two U.S. Secretaries of Labor.

While a law professor, Harris wrote a number of articles critical of the Department of Labor under the Bush administration. In particular, Harris criticized Labor Department regulations that were perceived as expanding the white-collar exemptions from the overtime requirements of the Fair Labor Standards Act. A strong proponent of flexible work arrangements, Harris is currently a member of the National Advisory Commission on Workplace Flexibility. In addition, Harris is a senior fellow of the Life Without Limits Project of the United Cerebral Palsy Association.

Harris holds degrees from the Cornell University’s School of Industrial & Labor Relations, and New York University School of Law. 

Correction: June 25, 2009

The Washington D.C. Employment Law Update blog entry posted February 25, 2009 stated that Seth Harris taught at the New York University School of Law.  The current entry correctly reflects that Harris was a professor at New York Law School. 

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The massive,1,122-page omnibus bill (H.R. 1105) introduced by House Democrats on Monday would provide significant funding increases for government agencies dealing with labor and employment issues. (pdf)  This $410 billion spending measure consists of nine fiscal 2009 appropriations bills that would spread a considerable amount of funds throughout several domestic agencies.

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After a nearly two-month delay, Rep. Hilda Solis (D-CA) has been confirmed as the next U.S. Secretary of Labor. Her nomination was supported by a Senate vote of 80-17. The Senate Health, Education, Labor and Pensions (HELP) Committee had already voted to approve her nomination by voice vote on the evening of Wednesday, February 11. Only two Republican Senators – Pat Roberts (R-KS) and Tom Coburn (R-OK) – opposed her nomination at the time. The HELP confirmation cleared the way for a vote on her nomination before the entire Senate this afternoon. Before Congress adjourned for the President’s Day recess, Senate Majority Leader Harry Reid (D-NV) had filed a motion to invoke cloture on her nomination. This cloture vote – which had been slated to occur this morning – would have staved off further objections to her nomination so long as Democrats could garner at least 60 votes in her favor. At the eleventh hour, however, Reid decided to forgo this procedural test vote and move right to a full confirmation vote.

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A bill introduced on February 12 would significantly restrict the ability for employers to arbitrate employment disputes. The Arbitration Fairness Act of 2009 (H.R. 1020) -- introduced by Rep. Henry “Hank” Johnson (D-GA) and cosponsored by 36 others – would amend the Federal Arbitration Act to invalidate all predispute arbitration agreements that require the arbitration of any employment, consumer, or franchise dispute, or conflict arising under any statute intended to protect civil rights. This Act would not apply to arbitration provisions contained in collective bargaining agreements.

This legislation broadly defines “employment dispute” as “a dispute between an employer and employee arising out of the relationship of employer and employee as defined by the Fair Labor Standards Act.” The definitions of “consumer dispute” and “franchise dispute” are similarly broad enough to encompass virtually any legal conflict. If enacted, this bill would essentially eliminate arbitration as a litigation alternative for employee claims – as well as those brought by clients/customers – unless the parties agree to the arbitral forum post-dispute. The provisions of this bill would take effect on the date of enactment, and would apply to any dispute or claim arising on or after that date.

This bill has been referred to the House Committee on the Judiciary.
 

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A large and powerful new union has formed from the merger of three nursing associations to create the 150,000 member United American Nurses-National Nurses Organizing Committee, UAN-NNOC (AFL-CIO). According to a joint statement issued by the United American Nurses, California Nurses Association/National Nurses Organizing Committee, and the Massachusetts Nurses Association, the goals of this new union are to:

• Build a Registered Nurses (RN) movement in order to defend and advance the interests of direct care nurses across the country;
• Organize all non-union direct care RNs (a substantial majority of the budget shall be dedicated to new organizing);
• Provide a powerful national voice for RN rights, safe RN practice, including RN-to-patient staffing ratios under the principle that safe staffing saves lives, and health care justice;
• Provide a vehicle for solidarity with sister nurse and allied organizations around the world;
• Create a national Taft-Hartley pension for union RNs.

Now the largest nurses’ labor union, the UAN-NNOC will have the clout and finances to pursue its “guiding principle” that all registered nurses be represented by an RN union.

For more information on this development, see Littler's ASAP:  Major Merger of Nursing Unions to Shake Up Health Care by Anita M. Polli, John D. Doran, Jenna S. Barresi, and Jennifer L. Mora.

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On February 6, President Obama issued yet another labor-friendly executive order encouraging the use of project labor agreements (“PLA”s) for large-scale, federally-funded construction projects. Ostensibly to “promote economy and efficiency in Federal procurement,” the order stipulates that executive agencies, in awarding a contract in connection with a construction project costing $25 million or more, or obliging funds pursuant to such a contract, may, on a project-by-project basis:

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Thousands of union members are expected to blanket Congress tomorrow, lobbying hard for the passage of the Employee Free Choice Act (EFCA). Union officials have promised to provide 1.5 million signatures in support of the “card check” legislation that would – among other things – enable the National Labor Relations Board to certify a union as the exclusive bargaining representative for employees in the absence of a secret ballot election and mandate binding arbitration for a first contract if the parties cannot agree to terms in a specified period of time.

Despite having received gifts in the form of three union-friendly executive orders last Friday, organized labor continues to push EFCA as its main legislative goal. The increased lobbying efforts may be due to the fact that lawmakers who once supported the measure now appear noncommittal, and that the business community has launched its own awareness campaign highlighting EFCA’s flaws. Even the President seems to be distancing himself from the fray, and has remained tellingly silent on the issue of late.

The union rally is expected to convene at 12:30 p.m. at Upper Senate Park in Washington, D.C.

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On January 30, 2009, President Obama issued three labor-related executive orders that will have a significant effect on federal contractors and send a strong signal of the new administration’s pro-labor positions.  For more information on these orders, see Littler's ASAP:  President Obama Issues Three Executive Orders That Dramatically Affect Labor Relations for Federal Contractors by Gavin S. Appleby and C. Scott Williams. 

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In what has gone relatively unnoticed, President Obama has endowed the incoming Secretary of Labor with sweeping enforcement powers via the executive orders signed this past Friday.

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In what may be considered a gift to organized labor, President Obama issued a series of executive orders on Friday aimed at undoing Bush-era policies involving federal contractors. Issuing executive orders is a quick way to implement labor policy – and appease unions – without enduring the time and uncertainty inherent in the legislative process. Moreover, reversing the prior administration’s executive orders has become a tradition whenever a new party takes over the White House.

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While it is expected that business and labor interests will have differing opinions on the Employee Free Choice Act (EFCA), it is generally anticipated that the president and vice president would be on the same page. Some off-the-cuff remarks by Vice President Biden last week, however, appear to indicate a rift in thinking between the two.

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A few new labor and employment-related bills focusing on health care and wage requirements for highway construction projects were introduced this week.

Health Care

Bills extending COBRA coverage seem very popular this session. In addition to the recent House Stimulus Bill (H.R. 1)  and the Coverage Continuity Act of 2009 (S. 29) which included provisions extending such health care coverage, the COBRA Coverage Extension Act of 2009 (H.R. 694) introduced by Rep. Joe Sestak (D-PA) would temporarily extend the basic 18-month period of COBRA continuation coverage to 24 months. This bill was referred to the House Ways and Means Committee.

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Parties who file documents with the National Labor Relations Board (NLRB) may now serve such documents on other parties via e-mail, according a final rule published in today’s Federal Register. This represents a departure from previous NLRB policy, requiring a party who filed a document electronically with the Agency to notify all other parties via telephone about the filing, then serve them with a physical copy of the document the following day at the latest.

Under the new rule, if a document is filed electronically and if e-mail service is not possible, a party must notify the other party(ies) by phone, then provide a copy of the document via personal service no later than the next day, by overnight delivery service, or with consent, via facsimile.

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Despite vigorous employer opposition and declining political and public support, the Employee Free Choice Act (EFCA) will likely become a focal point this summer. According to an article published in the Las Vegas Sun, Senate majority Leader Harry Reid (D-Nev.) still considers this bill an “important piece of legislation,” that the Senate hopes to address “sometime this summer.” The delay represents a significant deviation from expectations for the bill’s early consideration and a temporary setback for organized labor.

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The incoming administration took no time in setting up cybershop at the official White House website Tuesday afternoon. Before the President had even taken the oath of office, the files that once occupied Obama’s Change.gov site were transferred to the White House government page. Notably absent from this new site, however, was any mention of Obama’s ambitious labor agenda, including his desire to pass the controversial Employee Free Choice Act (EFCA). In fact, “Labor” isn’t even listed as one of the 24 subcategories under the link outlining the administration’s broad “Agenda.” Organized labor initiatives do not even appear under the catch-all “Additional Issues” subcategory.

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President Obama has designated Wilma B. Liebman as the Chairman of the National Labor Relations Board (NLRB). As an ardent supporter of unions and a vocal critic of right to work laws and recent NLRB decisions promoting an employee’s ability to reject unionization, Liebman will surely take the NLRB in a new direction – and one that is not necessarily favorable to employers.

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While it is widely expected that organized labor will push for the reintroduction of the Employee Free Choice Act (EFCA) soon after President-elect Obama takes office, the administration has indicated a reluctance to engage in controversial battles early into the Obama presidency; particularly those which employers contend will hurt business at this fragile time in the nation’s economy. In order to appease organized labor, however, the new administration may back other labor-related measures that will not require a lengthy and contentious legislative battle. Specifically, Obama may be more receptive to reversing a number of President Bush’s executive orders that are perceived negatively by organized labor. These executive orders were signed in the early days of the Bush administration, and sought to reverse labor/management policies set by the Clinton administration. The contentious executive orders include the following:

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Citing privacy concerns, the Department of Labor (DOL) issued a new rule abolishing the requirement that federal construction contractors and subcontractors include workers’ home addresses and full social security numbers on weekly certified payroll statements that are submitted to the contracting federal agency under the Davis-Bacon and Copeland Anti-Kickback Acts. Under the new rule published in the Federal Register on December 19, only a partial identifier is required, such as the last four digits of the individual’s social security number.

Many labor organizations opposed the new rule, fearing that omitting a worker’s complete identification information from weekly payroll statements could result in the misclassification of workers, underpayment of wages, fringe benefit abuses, and illegal kickbacks on federal construction projects.
 

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