Pay to Play Law Blog : EFCA Lawyer & Attorney : McKenna Long & Aldridge Law Firm : Employee Free Choice Act : EFCA Report Law Blog

The Minneapolis Star Tribune and CBS report that the Minnesota Supreme Court has affirmed the trial court decision declaring Al Franken (D) the winner of last year's Senate election:

"We affirm the decision of the trial court that Al Franken received the highest number of votes legally cast" in the election, the decision states. The justices also explicitly ruled that Franken is "entitled" under Minnesota law to receive the certificate of election as senator.

The judges stated that Coleman has "not shown that the trial court's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion." They ruled unanimously for Franken, 5-0.

Subsequent reports note that Coleman has conceded.  Once Franken is seated, the Democrats will hold 58 seats in the Senate, and two independents, Sens. Joe Lieberman (I-CT) and Bernie Sanders (I-VT), often caucus with them on labor issues.  It has long been speculated that this development would lead to a resurrection of efforts on behalf of the Employee Free Choice Act. 

Expect a renewed wave of enthusiasm by the bill's supporters in the days to come.  Still, once Franken is seated as the second Senator from Minnesota, EFCA in its current form faces an uphill battle.   Many of the 60 votes possibly controlled by the Democrats have openly questioned the bill's current provisions -- Sens. Lincoln, Feinstein, and Bennet to name but a few.  Senator Arlen Specter (D-PA), whose recent famous party switch put the Democrats this close to the prospect of cloture on any given measure, has consistently criticized EFCA as currently drafted.  On April 28 of this year, he reiterated that stance:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees [sic] Free Choice (Card Check) will not change.

What this likely means is that the various parties pursuing alternative labor law reform measures will now step up those efforts.  Among these underway:

• Senator Specter has previously laid out a number of possible elements he would explore, many of which we reviewed in our early 2009 white paper.
• Sen. Tom Harkin (D-IA) is said to have been pursuing "compromise" legislation providing for secret ballot elections within 21 days, and a greater emphasis on mediation in collective-bargaining.
• Sens. Feinstein and Specter have been said to have been discussing some form of mail-balloting as a selection method.
• The Committee For a Level Playing Field has proposed a comprehensive set of "principles for reform" incorporating stricter penalties, dates certain for elections, and union access to employees during campaigns, while preserving secret ballot elections and collective bargaining.

More coverage of today's news:

• "Meet the Dems' 60th Vote...Maybe" -- Atlanta Journal Constitution
• "After Eight Month Fight, Franken to be Seated" -- The Hill
• "Norm Coleman concedes Senate race to Al Franken" -- Politico
• "AFL-CIO: Franken Crucial for EFCA Passage" -- TPMDC

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Yesterday on Fox News' "Special Report with Bret Baier," the host discussed President Obama's healthcare reform agenda with panelists Fred Barnes, Kirsten Powers and Charles Krauthammer.  During the discussion, Krauthammer suggested that if the President's plan included tax exemptions for benefits provided by union plans, EFCA could become an unnecessary after-thought:

BAIER: President Obama in his even today, Kirsten, said "Don't listen to all the people that say the sky is falling." And he said "Yes, we can. We are going to get this done, yes, we can," pulling the campaign slogan.

Is that a sign that this is in trouble?

POWERS: I do not get the sense that they think it is in trouble. And their plan is to try to actually move this as quickly as possible, not let it languish like it did in the Clinton plan, where people had time to really pick it apart.

And I think Fred hit on an important thing is that once you start getting things on paper, then people can start picking them apart.

Right now what we have are a bunch of trial balloons. We don't know what's going to come of any of these, including taxing benefits, which of course was John McCain's idea during the campaign.

And, you know, I think a lot of people think what we will end up with is something along the lines of taxing the benefits of people at a certain income level.

But in terms of other things that have been tossed around, like possible exemption for unions, that is extremely unlikely. It is probably more likely they would do something at an income level which would have the effect of exempting unions without actually exempting them.

BAIER: Charles, the union thing, if they get exempted, that is a huge deal.

KRAUTHAMMER: That is a huge — the biggest payoff perhaps in history to organized labor. It would establish a two-tier system in America, where if you are in a union, you get a pass on taxation of your benefits that your employers pay. If you're out of a union, you get taxed that. That is a huge difference.

Secondly, it kicks in on the first of January 2013, which means that for the next of four years, people will be scrambling to get into unions in order that you will have your employer benefits non-taxed.

POWERS: Charles will join a union.

KRAUTHAMMER: I will join a union if I have to.

BAIER: The Employee Free Choice Act lives, perhaps?

KRAUTHAMMER: You won't even need card check to force people in with a thug who comes to your home at night and says you want to sign here to become a union member?

Instead, you offer a goody of a two-tiered system, and I think it will be a tremendous asset to anybody organizing unions. So it's a payoff.

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At ShopFloor.org, NAM criticizes the AFL-CIO's Richard Trumka for accusing the Association of acting through "front groups":

Labor calling business coalitions “front groups” is meant to imply shadowy, dishonest organizations created to hide one’s alliances. It cannot conceivably be applied to the Coalition for Democratic Workplace, the group the National Association of Manufacturers is active in. In our Shopfloor.org posts on the CDW’s activities, we almost always include a line associating the NAM with its efforts, such as, “The National Association of Manufacturers is a member of the Coalition for a Democratic Workplace and glad of it.” And here’s the CDW’s membership list.

If Trumka wants his attacks against “front groups” to have some modicum of intellectual honesty, he might want to level them via some other group than the International Centre for Trade Union Rights.

The Alliance for Worker Freedom has issued a new press release asserting that bailing out the failing union multi-employer pension system is the true aim of EFCA:

“The unions’ ulterior motive behind the Employee Free Choice Act (EFCA) is to use the forced binding interest arbitration clause to mandate companies fund the underperforming and underfunded union pension plans,” says AWF Executive Director Brian Johnson. “For companies, the choice is clear: shut down immediately or go out of business due to loss of capital to pay for operating costs by being forced to fund a failing system – it’s that easy.”

The Hill reports that neither Democrat Senator from Montana -- Sen. Max Baucus or Sen. Jon Tester -- will proclaim support for EFCA as currently drafted:

"It would be very hard to support the bill in its current form, but that is why I'm working with my colleagues in the Senate to bring some common-sense modifications to the bill to make sure it balances workers' interests with small-business interests," Baucus told The Missoulian, which did a two-part series on EFCA's potential impact on Montana.

Tester's spokesman meanwhile said EFCA "isn't ready for a Senate vote yet," and added that Tester would weigh the bill's pros and cons before deciding on how to vote.

Finally, at Think Progress, Matthew Yglesias makes the following observations about the filibuster:

I don’t think you need to appeal to the idea that people prefer to pander to the caucus’ worst instincts so much as simply the fact that legislators prefer to do nothing at all. The supermajority—and, more broadly, the extreme difficulty of moving legislation—makes it easier for elected officials to make contradictory commitments to various people. Consider that as long as Democrats clearly didn’t have the votes to pass the Employee Free Choice Act, they could promise labor law reform to unions while also reassuring business that no such law was going pass. After the election suddenly there were sixty members who’d promised to vote for EFCA, which created an awkward situation for those members who, in fact, preferred to do what business wanted and killed it. They had to flip-flop in a not-very-pretty way and anger a lot of people. If it took 67 votes to move a bill, they would have been in much better shape, loyal friends to Wal-Mart and the AFL-CIO alike.

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Dispute arbitration is used to resolve factual disputes (such as whether or not an employee was properly discharged or disciplined) -- after a contract has been entered into by the parties. There is long-standing precedent for this type of arbitration and surveys demonstrate its utility and support by the public. This is entirely different from what EFCA calls "arbitration." What EFCA entails in its interest arbitration language is a broad grant of authority to an outside person or entity to actually write and determine every provision of the underlying contract governing an entire workplace -- and force the parties into that contract. The comparisons are entirely spurious.

 

The unions remain troubled by the facts and are trying to deliberately confuse the issues. However, no amount of obfuscation will hide the true impact of the Employee Free Choice Act. Government-mandated binding interest arbitration of any type in the private sector is unworkable and unacceptable. It is also completely unrelated to the business community's support for dispute arbitration.

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Today's Chamberpost blog carries commentary on a series of somewhat embarassing admissions by the Director of Collective Bargaining for the AFL-CIO that undermine the coalition's main talking points in favor of the Employee Free Choice Act:

... According to Daily Labor Report, the labor conglomerate’s director of collective bargaining, Gordon Pavy, told a policy forum that the bill’s passage would allow his organization to "refocus on organizing."

Hold it a second.  Refocus?  Hasn’t this already been a central focus of the labor movement?  Pavy’s comment reveals what we’ve known all along: organized labor has let its organizing efforts lapse in favor of using the political process to bolster its ranks by rigging the rules. 

Perhaps the more troubling admission:

On the issue of concluding first contracts, Pavy also revealed that "the AFL-CIO does not currently have a program to train members in how to negotiate collective bargaining agreements."  Huh?  A favorite talking point of EFCA supporters is that they can’t get contracts because employers drag out negotiations. Perhaps unions would seal the deal on more contracts if they made training negotiators a priority. 

Instead, unions want binding first contract arbitration so they always get a contract no matter what they demand at the bargaining table.  But, Pavy detailed the squeeze this would create on negotiating parties: 

"Bargaining must commence 10 days after [union authorization cards are signed]," Pavy said. "It takes a lot of work to prepare for bargaining.  It takes even more work when you’re dealing with the prospect of possibly going to arbitration."

We’ve said all along that negotiating for a first contract can be a difficult process that takes time.  Nice that the AFL-CIO agrees. But as they admit, setting up a race against the clock makes that process even more difficult, guaranteeing that most negotiations will wind up in arbitration.

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Last week, CNBC financial host Jim Cramer made news decrying Labor's pursuit of "card check" on the "Morning Joe" program.  This week, he's involved in another conversation criticizing the effort, but the focus-slash-backlash is directed to network-mate Erin Burnett.

As reported earlier by Greg Sargent at the WhoRunsGov blog:

Now Burnett suddenly seems to be in the soup again — this time for comparing the Iranian elections to what would happen under the Employee Free Choice Act — and she’s getting bombarded by a plague of angry emails, courtesy of the SEIU.

Burnett asked whether the situation in Iran “makes a strong point for this whole union conversation that we’re having in this country?” The point being, of course, that EFCA’s supposed elimination of the “secret ballot” for joining unions would be analogous to Iran.

Around an hour ago, SEIU blasted out a demand that members bombard Burnett with email pilloring her “irresponsible journalism” and “reckless reporting.” SEIU claims that more than 4,000 emails have rained down upon Burnett in that time.

Who knows how much Burnett cares about a bunch of emails from grubby union members. But SEIU obviously is grabbing at the chance to juice its membership by tying the sometimes numbing EFCA debate to the hottest story of the moment, hopefully baiting Burnett into responding again.

The video:

More:

• "Cramer, Burnett: Iran Election Results Expected; Lesson for Card Check Proponents" -- Business & Media Institute
• "CNBC Fail: Anchors Compare Iran Elections to EFCA" -- SEIU blog

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At Town Hall, Carl Horowitz examines the ongoing corporate campaign by Labor and its allies against Starbucks. Horowitz generally notes the irony in the Far Left-Labor alliance continually hammering the coffee giant, which has always "sought to be a hybrid of profit-seeking and social responsibility."  Among other elements of this campaign, Horowitz notes recent developments following Starbucks' announcement just months ago, that it was forming the "Committee for a Level Playing Field", along with CostCo and Whole Foods to explore alternatives to EFCA:

EFCA, as many are aware, has stalled. In 2007, the House passed the measure, but Senate Republicans successfully blocked it. The bill, not unpredictably, has been re-introduced in the new Congress; President Obama has vowed to sign it. Yet even with wide Democratic majorities in the House and Senate this time, the measure remains highly vulnerable to filibuster. A number of Senate Democrats such as Blanche Lincoln (Ark.), Claire McCaskill (Mo.), and party convert Arlen Specter (Pa.) believe the Employee Free Choice Act is ill-suited to deal with the current recession, if not necessarily wrong in principle. Union leaders such as Service Employees President Andrew Stern have expressed pessimism over the prospects for passage.

Here’s where the Seattle-based Starbucks fits into the picture. This March, Starbucks’ Howard Schultz, Whole Foods’ John Mackey and Costco’s James Sinegal announced the formation of an ad hoc group, the Committee for a Level Playing Field for Union Elections. The purpose is to create a Third Way that would protect union organizing rights while retaining the secret ballot. The project would guarantee a fixed time period in which to hold a secret-ballot election and increase penalties upon employers and unions who violate the law.

Many activists on the Left are enraged at this seeming sellout, which in fact is more tilted toward union interests than it looks. It’s another phase in a continuing battle against Starbucks.

His conclusion?   Starbucks should "smell the coffee and fight back."

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The Wall Street Journal reports that earlier today, during comments about the Obama healthcare agenda, Secretary of Labor Hilda Solis reiterated her support for EFCA:

With regards to the Employee Free Choice Act, Solis reaffirmed her support for employees being allowed to form unions and said she's hoping to see some sort of compromise on the controversial legislation that has pinned businesses against union advocates.

Solis declined to say what specific compromises could be made.

Online Marxist journal Political Affairs Magazine carries a recent speech by Rep. Keith Ellison (D-MN) wherein the Congressman challenged progressives to aggressively promote their agenda, including:

We can't aim low. The Employee Free Choice Act, bare minimum. Bare minimum. It's not much to ask for, but until we make it into the law, it's just something we're hoping for. Are we going to bring the pressure we gotta have to get the 60 votes we need to end the debate?

You better believe that the Chamber is loaded for bear to stop this effort, for workers to get the rights that they need. Are you loaded for bear? This is the question that I put before you. I'm going to tell you that I trace every single financial and economic problem back to the weakness and fragility of the labor movement since 1957.

If workers were stronger – if workers were stronger, we'd have universal health care already. If workers were stronger, we'd have the rights of gays and lesbians protected. If workers were stronger, we wouldn't have had to pass the Lilly Ledbetter Act a few weeks ago; we'd have been had legislation to make sure that women get paid for equal work; it is only just, and it's only right.

We would have had this stuff done already, but it is because, it is because, it is because our movement lacks muscle and bone density that we're not able to drive the interest that we need, and that means starting with strengthening labor. The Employee Free Choice Act must be made a reality, and all of us have to take personal responsibility in doing it.

Politico's Shenanigans column follows an SEIU effort to persuade the "friends and neighbors" of Sen. David Vitter (R-LA) that the Senator should support EFCA.  Anne Scroeder spoke to Vitter press secretary Joel DiGrado about the SEIU mailers he has been receiving at his home address:

DiGrado thought it was strange he had received the mailer at home. At work, he discovered that another Vitter staffer also received the mailer at his home in D.C. Then they talked to a former staffer, and he had gotten one at his home in North Carolina. Their informal polling showed that none of their neighbors had received the mailer, which is very Louisiana-specific. Clearly, the SEIU is targeting Vitter staff. And, presumably, it’s rather pricey to do so — just this week The Wall Street Journal reported the SEIU is in debt.

“It just plays up the negative stereotype you hear about unions using intimidation to meet their ends,” DiGrado tells Shenanigans. “What’s next? Are they going to put a large inflatable rat in front of my house? Am I going to have to think twice every time I see a Local Steamfitters van by my car?”

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At Pajamas Media, Jennifer Rubin questions whether Sen. Tom Harkin (D-IA) truly intends to bring EFCA to the Senate floor in July:

There are grounds for skepticism. After all, with health care and Supreme Court confirmation fights brewing, it seems the congressional calendar is already jammed. Yes, it is true that the newest Democratic Senator Arlen Specter has let Big Labor officials know that they won’t be “disappointed” by his vote when it comes up. But what’s in the compromise? And more importantly who’s going to tell Sens. Blanche Lincoln, Ben Nelson, Mary Landrieu and other nervous Red State Democrats that they have to walk the plank on this one?

As one Capitol Hill Republican aide told Pajamas Media: “Sounds like it might be a bit of bluster. … Still, even still, even if all of this is as Harkin claims, they still only have 59 [votes] without Franken.  But if he comes in [to the Senate], they’re going to have to definitely flip Nelson or some of the other nervous Dems.”

Marathon Pundit's John Ruberry reacts to a report in today's Denver Post regarding "panicked" reactions of organized labor to Sen. Michael Bennet's more recent commentary on his "cool" stance on the bill:

I don't blame them for panicking. Officially the Coloradan is neutral, but they also must remember that workers aren't marching down the streets of Denver, Greeley, or heck, any American town demanding to join unions. And if they want to, there's a set procedure in place--secret ballot elections.

And in the Detroit News, columnist Manny Lopez relays the details of a recent phone conversation he had with Michigan AFL-CIO head Mark Gaffney:

Right to work, Gaffney told me, was purely a "political consideration" that union Democrats would never support anyway. Perhaps. It's as much a political issue as is the Employee Free Choice Act, a push by the labor movement to allow union formation with card signatures alone.

Gaffney, and plenty of United Auto Workers members I talk to, think EFCA is the perfect answer to all the Southern senators who opposed helping bankrupt General Motors Corp. and Chrysler LLC.

It is not, however, the answer. Restricting competition or lowering the benchmarks so low that employers -- the entrepreneurs who provide jobs and build communities -- lose control of their own operations, will only guarantee further jobs lost.

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NewsMax.com reports that EFCA steward Sen. Tom Harkin (D-IA) will not seek any formal Senate action on the legislation "until Al Franken is sworn in as senator."  Citing a Politico piece, the report continued:

Harkin felt it again did not have enough votes to pass earlier this spring, due to it being opposed on a nearly party-line. However, rogue Pennsylvania Sen. Arlen Specter, who originally opposed any bill that includes the open-ballot rule, switched from the Republican Party to the Democratic Party in April and has since been privately discussing the bill with Harkin.

Harkin said he expects to put the card check bill up for vote next month and credits Specter, Sen. Mark Pryor, D-Ark., and Sen. Charles Schumer, D-N.Y., with crafting a compromise.

Politico reported that on Tuesday, Harkin included AFL-CIO legislative director Bill Samuel in the talks, indicating progress is being made.

“We’re in meetings right now,” Harkin said. "I’m still hopeful that we can get something done.”

Reportedly excluded from the closed-door talks were Sens. Ben Nelson, D-Neb., and Dianne Feinstein, D-Calif., RedState.com reported sources as saying. Harkin also will need their support to avoid a filibuster.

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Both Sens. Arlen Specter (D-PA) and Dianne Feinstein (D-CA) have reportedly been considering a "mail-in" or "postcard" alternative to EFCA's card-check recognition scheme.  In the Oregonian, Coalition for a Democratic Workplace Chairman Brian Worth responds to an earlier piece in the paper regarding this alternative:

'Postcard check' scheme
 

There is no comparison between Oregon early voting and congressional efforts to find alternatives to the wildly unpopular card check scheme ("Mail voting proposed in union 'card check' fight," June 4).

The most important distinction is that there's no ballot involved in the mail-in
card proposal. It merely substitutes the discredited card check ruse with a "postcard check" -- a new and equally flawed variation. The postcard check proposal increases the power of the professional union organizer, eviscerates secret ballot elections and further weakens workers' privacy rights.

Like regular card check, mail-in cards do not provide the guaranteed security and privacy of a voting booth, thus inviting fraud, intimidation and coercion
with more visits to workers' homes by union organizers.

This latest attempt to fix what is wrong with the Employee Free Choice Act opens the door to abuse through ACORN-style campaigning that is prone to fraud and increases the possibility of worker intimidation and coercion. As National Labor Relations Board career staff noted, mail-in cards increase the "potential for interference by any party."

You can't fix card check by simply adding postage and this alternative further expands the attack on worker privacy from the workplace to the home.

BRIAN WORTH
Chairman
Coalition for a Democratic Workplace
Washington, DC
 

Hat Tip:  ShopFloor.org

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The latest on EFCA swing-vote Sen. Arlen Specter via the Allentown Morning Call's Pennsylvania Avenue blog:

Sen. Arlen Specter, addressing a crowd of union activists outside of the Democratic Committee meeting in Pittsburgh on Saturday, urged them to look at the breadth of his job-producing past and votes alongside labor when considering who they'll back for Senate in 2010.

But with the crowd of a couple hundred solely focused on the Employee Free Choice Act, Specter pleaded with some more hostile activists that they'll be happy with his vote on the union organizing bill.

"I understand," Specter said after one member of the crowd shouted "You want my vote, I want your vote."

"I believe you'll be satisfied with my vote on this issue," Specter said.

At The Weekly Standard, John McCormack posts:

When Specter announced his opposition to EFCA in March, he came out against both the card-check and binding arbitration provisions.   . . .   I'd be surprised if a watered-down EFCA bill didn't include some sort of binding arbitration provision, so be prepared for another unsurprisingly shameless Specter flip-flop.

Similarly, at National Review Online's The Corner, former NLRB Member Peter Kirsanow suggests:

. . . It's highly unlikely Labor would be "satisfied" with any version of EFCA that doesn't exponentially improve the odds of unionization. It's also unlikely that Labor would be "satisfied" with a bill that doesn't have some form of mandatory arbitration.  

When Franken is seated, Specter will be the magical 60th vote for cloture on EFCA. Specter knows that if he derails a version of the bill satisfactory to Labor, he may well derail his prospects in the Democratic primary. Therefore, Specter may be signaling support for a bill that contains quickie elections and equal access, as well as a modified form of mandatory arbitration — perhaps one triggered by bargaining delays.

More:

• Senator Specter's entire speech at PennLive.com
• "Arlen Specter's Charm Offensive" -- Politico
• "Specter to Labor:  You'll Like My EFCA Vote....Maybe" -- The Hill's Briefing Room
• "Early Returns: Specter Reax" -- Pittsburgh Post-Gazette

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Investors Business Daily reports the "Card Check Threat Alive and Well":

Card-check supporters have begun a new lobbying effort that targets a few wavering senators including Democrats Dianne Feinstein, Arlen Specter and Mark Pryor. The idea is to put the squeeze on Congress instead of taking the case to voters.

It may be one reason why card check has morphed into new incarnations, the latest a "compromise" bill from Feinstein. She has proposed a mail-in card-check format, which still amounts to a denial of secret ballot. Curiously, Feinstein backed away from her own compromise Thursday, raising questions as to whether she was being manipulated and wanted out.

The other prong of the card-check lobby has set up a supposed "grassroots" group as a fig leaf for the same old Big Labor interests.

A new group calling itself "Business Leaders for a Fair Economy" has gotten press for its novelty value as a 1,000-member business group that actually favors card check. Its Web site says it's paid for newspaper ads in The Hill, Politico and Wall Street Journal, all closely read by the political set, urging Congress to pass card check.

Others are also skeptically commenting on the AFL-CIO's latest project launch, the Business Leaders for a Fair Economy.  The Hill, recipient of some of the organization's ad dollars, notes "Industry Questions Pro-Card Check Business Coalition":

But advocates for the National Federation of Independent Business (NFIB) and the Workforce Fairness Institute, two opponents of the bill, say the businesses that make up the coalition all have union shops and the new coalition’s goal is to increase labor’s ranks so its unionized members would not have to compete as much with the smaller labor costs of non-unionized firms.
 
“Invariably, these business owners are already unionized. So the bill would provide a competitive advantage for them if it got passed and level the playing field by having their competitors forcibly unionized as well,” said Brad Close, vice president for public policy for the NFIB.

And Labor Relations Institute (LRI) questions:

I know you’ll find it shocking, but the Chairman of this front group is CEO of American Income Life Insurance Company whose employees - according to a quick LRI Online search - turns out are represented by OPEIU Local 277. It’s easy to see why once you’re stuck with a union why you’d want to make sure everyone else was too - but I wonder how many non-union employers are on the list of 1,000 Employee Free Choice Act Supporters? I’m guessing not many.

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On this morning's "Morning Joe" on MSNBC, financial television personality and founder of TheStreet.com, Jim Cramer pronounced EFCA's "card check" provision to be "maybe the most important issue facing American companies right now."   Cramer included some dire predictions for retail if EFCA becomes law:

If they get card check I gotta tell ya, I think Wal-Mart... cut in half.  I think most of the department stores will suffer mightily.  There’s a lot… even Costco just trying to do a middle ground card check…

Perhaps even more surprising was the extent to which the rest of the guests -- including Mike Barnicle and New York Times financial reporter Andrew Sorkin -- piled on.  Here's the video:

More:

• "Jim Cramer: Mad Money and Card Check" -- TheTruthAboutEFCA.com
• "No Successful Unionized Companies?" -- Politico 
• "The Sorkin List; Successful Unionized Companies" -- TPM
• Sorkin also followed up with TPM later...

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We have noted a number of times before that for all the pre-election and early talk, EFCA has not at all been a top priority of the Obama administration to date.  The President has certainly declined to unequivocally state his support for the pending bill as currently drafted.  Now comes this from yesterday's press briefing with Press Secretary Robert Gibbs:

Q    Robert, the Employee Free Choice Act, you've got a full plate, but that seems to have gotten pushed aside.  There are some labor leaders who feel that there has not been enough vocal support from the administration on the Employee Free Choice Act.  So two questions:  Is this something the President supports, and is it a priority for this year?

MR. GIBBS:  I don't have anything new on it from what we've -- I don't know when the last time we were asked.  I think you heard the President talk about his support for it throughout the campaign, and it's obviously one of many things that we will work on throughout our time here.

Q    High priority for this year?

MR. GIBBS:  Let me check.  I believe it is -- I believe it is, again, something the President campaigned on and we'd like to see happen.

Yes, sir.

That is not likely to provide much comfort to the labor leaders referenced by the questioner.

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Regular readers of EFCA Report are up to speed on the status of President Obama's proposed nominees to fill two vacant slots on the National Labor Relations Board.  In late April, we featured two detailed posts on a number of issues the Board is likely to tackle once fully constituted, noting several areas where the "Obama Board" is likely to reverse positions in decisions handed down by the "Bush Board." 

Today's Wall Street Journal cites to our observations:

Law firms are advising corporate clients to be on alert. If confirmed by the Senate, the two new board nominees -- labor-side lawyers Craig Becker and Mark Pearce -- would join longtime member and chairman Wilma Liebman to create "a majority bloc distinctly in favor of expanding the rights of unions and workers," law firm McKenna Long & Aldridge LLP said in a report addressing issues likely to be revisited by the NLRB. "Employers must…prepare for the resulting shifts in the regulatory landscape."

Once new nominees are in place, the board will face a lengthy agenda of issues including: whether more workers whose jobs fall in the gray area between salaried management and hourly laborers should be allowed to unionize; how much freedom workers should have to use company email systems to promote union membership; how much access union organizers should have to workplaces; and what constitutes unacceptable intimidation by employers seeking to oppose union organizing drives.

An additional interesting item from the WSJ piece regarding the new Board and EFCA:

[Current Board Chair Wilma] Liebman said she is "agnostic" on the proposed Employee Free Choice Act, the labor-backed proposal in Congress that would make it easier for unions to organize workers without secret ballot elections as well as give federal arbitrators authority to impose contract settlements in cases where labor and management can't conclude deals.

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The Federalist Society hosts the latest installment of its Orginally Speaking series featuring a debate on EFCA with Richard Epstein (NYU/University of Chicago), Thomas Kochan (MIT), Eugene Scalia (Gibson, Dunn & Crutcher LLP), and Patrick Szymanski (Change to Win).  Among the notable quotables, echoing our observations about a recently released study, Mr. Scalia asserts:

As for the studies that purportedly link union decline to employer misconduct, they typically are unreliable on their face. One frequently-cited study by Professor Bronfenbrenner measured employer misconduct during organizing campaigns by surveying the union organizers. That’s like asking the Cleveland Cavaliers’ last opponent whether LeBron James got too many trips to the free throw line.  

The Hill has an interesting piece of broader significance on "micro-targeting" by lobbying and advocacy groups.  Included in the piece:

Alexander Gage helped President George Bush win reelection in 2004 by employing techniques that allowed the campaign to target its messaging to a few key groups. Now Gage, the CEO of TargetPoint Consulting in Alexandria, Va., says he is working on “four or five” public advocacy campaigns, a relatively new line of business for the firm.

His clients include a business group, which he declined to name, that is using microtargeting to find opponents of the Employee Free Choice Act, also known as card-check.

Technological advances and basic trial and error in past campaigns have improved microtargeting modeling, Gage said, enabling firms like his to better determine “what sequence of information is the most indicative of who is going to support you.”

Finally, at the America's Future Now conference, a gathering of progressive activists, Robert Borosage, co-director of the Campaign for America’s Future, told participants the Employee Free Choice Act is

essential to insuring that the blessings of the next prosperity will be widely shared, that the American middle class will expand, not decline, and that the progressive majority will be consolidated.

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