EFCA Report : EFCA Lawyer & Attorney : Employee Free Choice Act

Ben Smith writes in Politico of EFCA and other legislative initiatives, "Issues tabled, left still professes hope":

The Obama White House has, through administrative action, done much to satisfy groups of supporters. The president has made record-breaking numbers of senior Hispanic appointments, for instance, and reinvigorated the agency that regulates workplace safety, a labor priority.

But legislation is another story. The Employee Free Choice Act didn't even get a mention in the State of the Union, though Obama technically supports it. Senate Democrats like Blanche Lincoln of Arkansas have appeared to bend to fierce local pressure to oppose it. Still, the unions fight on: The act is "still one of our top priorities," said AFL-CIO spokesman Eddie Vale. "[We] still think it can be done."

The union is continuing to push the legislation with state events, asking members to call and write Congress and lobbying legislators and making the case that stronger unions are part of a stronger economy.

Their allies in maintaining what is widely viewed on Capitol Hill as a fiction — that the bill has even the slimmest chance of passage this year — are the half-dozen groups spawned by the business community to fight it, whose own viability depends on their constituents' alarm.

"We can't put anything past the union bosses. They have invested half a billion dollars in the current leadership and expect a return and have said as much," said Danny Diaz, a spokesman for the Workforce Fairness Institute.

It is an approach about which Slate's Mickey Kaus tweeted:  "Now $-raising kabuki on both sides"

But in "Where There's a Bill, There's a Way," TheTruthAboutTheEFCA blog opines that labor has invested too much capital "to walk away without anything they can claim as a victory and it’s clear they are still discussing methods of attaching EFCA language to other bills."

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As the Senate Recess begins, observers continue to speculate whether President Obama will use recess appointments to place nominee Craig Becker on the National Labor Relations Board.  Last week, Becker's nomination stalled in the Senate when a motion for cloture failed 52-33.  Later in the week, the President strongly suggested that he would not be using recess appointments at this time.  In an opinion piece in today's Politico, University of Texas Professor William E. Forbath asserts that Becker should be confirmed:

Cautious Democrats are urging the White House against making a recess appointment of Craig Becker to the National Labor Relations Board. But these timid Democrats are wrong.

Many argue that the fallout from a Becker appointment would be self-defeating for labor because it would end any chance of getting the Employee Free Choice Act through the Senate. But the EFCA died when Sen. Scott Brown (R-Mass.) took his seat, if it wasn’t dead already. The EFCA won’t pass unless and until the filibuster rules are changed. And then, the Becker appointment won’t matter.

At Human Events, the Heritage Foundation's Brian Darling argues against the use of recess appointments:

A recess appointment can be made to put a nominee into a position temporarily, usually for a year or so, when the Senate is out of session. Many Democrat Leaders in the Senate vigorously opposed President George W. Bush’s use of recess appointments, but now support Obama’s stated intent to use recess appointment authority.

One of the questionable nominees is Craig Becker (for the National Labor Relations Board). Becker was blocked last week by the Senate because many are concerned about his views on the Executive Branch’s power to implement big labor’s agenda without legislation. 

But as noted above, over the weekend, Sam Stein reported in the Huffington Post that the President would not appoint Becker by recess appointment:

Among those on the losing end of the deal struck between Obama and Senate Minority Leader Mitch McConnell (R-Ky.) are labor unions.  Craig Becker, the president's nominee for the National Labor Relations Board who was filibustered by the Senate this past week, will not get the recess appointment next week that union officials were hoping. Instead, his nomination is either dead or put on hold until the next Senate recess at the end of March.

Elsewhere in the Huffington Post, Bill Lucey had a great piece chronicling the historical use of recess appointments by Presidents, "Examining the 'Recess of the Senate'".

More on this issue:

• "White House: No Recess Appointments During Next Week's Break" -- ShopFloor.org
• "Obama’s Love of Labor Makes for One Unholy Union: Kevin Hassett" -- BusinessWeek
• "Recess Posting Possible" -- Wall Street Journal

 

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At the Huffington Post, Sam Stein reports on Labor's current view of the administration in "Big Labor, Big Concerns: Obama's Approach Causing Tension."  Set against the AFL-CIO's and SEIU's activities in the healthcare legislation deabte, the piece notes Labor's frustration with the President's "punting of the Employee Free Choice Act until 2010."  Notes Stein:

Labor leaders are loath to publicly criticize Obama, in part because they remain acutely aware of the benefits of staying in his (and WH chief of staff Rahm Emanuel's) good favor. But in private, there is a growing "frustration," as one union official put it. And as it became clear that the Senate was settling on a health care bill that taxes high-end plans (which cover many union members as well as other workers) and includes no additional government-run plan for insurance, a hint of that frustration seeped to the surface.

"What I want the president to do is to work with the conferees on the issues that he has said from the very beginning are important to him and say we have a chance to get some of those done, particularly the ones that relate to making sure that people who don't have insurance will be able to afford what is made available," SEIU President Andy Stern declared in a conference call this past week. "We need his moral suasion. We need his personal involvement and we are totally convinced that what we want done is what he wants done. And all we can do is maximize the effort."

Implicit in the remark was that, up to this point, Obama had provided neither the "suasion" nor "involvement" needed in the debate. It was hardly the most controversial of statements. Indeed, Sen. Russ Feingold (D-Wisc.) echoed the sentiment days later. But coming from Stern -- the closest of the president's labor allies -- it was, as one union hand pointed out, "hard to dismiss."

Elsewhere, both the SEIU and the AFL-CIO delcared the U.S. Chamber of Commerce the "Scrooge of the Year," reporting on the "award" bestowed by union 501(c)(3) group, Jobs With Justice:

The Chamber has spent millions of dollars lobbying against legislation that would benefit workers and families like the Employee Free Choice Act....

The Chamber tweeted it's acceptance speech:

Union group names us "Scrooge of the Year" -- here is hoping we get it again in 2010 for more #efcafail (@jwjnational)

And The Truth About The EFCA blog links to this thorough 2009 re-cap of legislative opposition to the Act prepared by the House Committee on Education and Labor Republicans: "A Year's Worth Of Reasons Not To Enact EFCA."

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Over the last few months as the House and Senate have turned just about the entirety of their attention to healthcare insurance legislation, the winds previously swirling about the Employee Free Choice Act have calmed considerably.  In a recent Wall Street Journal interview, new AFL-CIO President Richard Trumka called it "the best stall that we've ever had," asserting "we're going to get healthcare done" first and then turn full attention to passing EFCA.  Melanie Trottman reports:

Once the health care bill is passed (Trumka is confident it will become law), unions will move immediately to EFCA, a bill they’ve been forced to push to the back burner while health care dominates the spotlight. Unions say they need the so-called “card check” bill to make sure workers can join unions without employer intimidation. They’re also keen on a provision that would allow government arbitrators to quickly settle stalled labor contract disputes.

Business trade groups are prepared to continue fighting the bill which they say would unjustly force contract terms and allow unions to intimidate employees into joining.

Elsewhere:

• in the Cleveland Plain Dealer, columnist MIchael Smerconish highlights former Rep. Dede Scozzofaza's (R-NY) support for EFCA as one of the prime reasons many conservatives and Republicans withdrew their support for her, effectively handing New York's 23rd district to the Democrats for the first time in decades.
• In the Houston Chronicle, Fisher & Phillips partner Kevin Troutman identifies elements of the pending healthcare legislation that will drive up unionization, even as EFCA idles. 
• In the Wall Street Journal, earlier this week, Kris Maher reported on various efforts to enact elements of EFCA and speculated EFCA compromise propositions in various states.  (For our earlier coverage of similar state efforts, see posts here and here.) 

 

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At Jottings By An Employer's Lawyer, Michael Fox comments on our earlier post about Senator Reid's comments to the Las Vegas Chamber of Commerce.  Among his astute observations:

The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.

Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.

At Workplace Prof Blog, Professor Richard Bales links to the SSRN posting of George Mason University Professor Harry Hutchinson's article, "Employee Free Choice or Employee Forced Choice?  Race in the MIrror of Exclusionary Hierarchy."   The abstract suggests that EFCA would have a racially discriminatory impact:

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of the Progressive movement that dominated so much of American intellectual life during the first third of the twentieth century. As it was widely acknowledged at the time, the NLRA was revolutionary in its implications for American Labor Law. Less widely recognized were the adverse effects of this and other New Deal statutes on people of color. Readily available evidence shows that President Roosevelt’s insistence on raising the price of labor (1) increased unemployment and human suffering, and (2) also widened the unemployment gap between blacks and whites. Today, this wide, if not widening, unemployment gap remains in effect. Properly appreciated, the consequences of the New Deal for African Americans persist as an important and under-examined issue. It is likely that neither Progressive Era labor legislation nor contemporary efforts to further transform the labor market operate in the best interest of African American citizens. Provoked by the assertion that labor faces a legal crisis and the claim that the statutory right to organize is a sham, energized by the contention that the union movement ought to reinvent itself as a robust engine of collective insurgency against globalization, class-based injustice, and asserted increasing disparities in income, labor union advocates and hierarchs have offered a number of ideas that include the necessity of acting like a genuine rights movement, encouraging open source unionism, and creating alternative (nonunion) worker organizations.

One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate the necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize the workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This paper deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to show that rather than embracing freedom for workers, eliminating poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.

Finally, although it is not entirely clear what Senator Arlen Specter (D-PA) intends to do regarding EFCA when deliberation resumes -- and indeed it seems he continues to walk a tight-rope on the issue -- labor lobbying group American Rights at Work has launched an ad campaign "thanking" the Senator for his "reversal" on the bill.  Per The Hill:

The American Rights at Work ad says Specter "listened" to that group in crafting his stance on the card check bill, a union organizing bill strongly supported by organized labor, and tells viewers to "thank Senator Specter and make sure he keeps listening."

The ad will run on national sites like the New York Times, Washington Post, and MSNBC websites, as well as several prominent political sites in Pennsylvania: Philly.com, PoliticsPA.com, KeystonePolitics.com, GrassrootsPA.com, and YoungPhillyPolitics.com.

 

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Kris Maher writes in today's Wall Street Journal that "Odds of a Vote Dim for Card-Check Bill":

Further complicating the bill's chances this year are the serious illnesses of Sens. Edward Kennedy and Robert Byrd -- both strong labor supporters -- and doubts about whether the two would physically be able to attend a floor vote. Democrats would need both of them to marshal the 60 votes required to thwart a likely Republican-led filibuster.

"They don't have the votes without those two guys coming to the floor at this point," said a person familiar with Democratic leaders' thinking.

Peter Francia, a labor and politics expert at East Carolina University in Greenville, N.C., said, "Without 60 votes, EFCA will not move forward and is likely to face delays into 2010."

In The Hill, Kevin Bogardus suggests that the NLRB Members that President Obama seeks to have appointed -- whether by Senate confirmation or recess appointment -- "worries business":

Business advocates fear the NLRB, at its full capacity and run by Democrats for the first time in eight years, will vote against their interests in favor of unions. Of particular concern is that the board will try to implement parts, if not all, of the Employee Free Choice Act (EFCA), or card-check, which makes it easier for employees to organize.

“If they can’t get the Employee Free Choice Act passed, is this Plan B to have someone confirmed to the board who will take an aggressive stance with the law and try to implement it through the machinery of the board?” said Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce. Business advocates fear the NLRB, at its full capacity and run by Democrats for the first time in eight years, will vote against their interests in favor of unions. Of particular concern is that the board will try to implement parts, if not all, of the Employee Free Choice Act (EFCA), or card-check, which makes it easier for employees to organize.

“If they can’t get the Employee Free Choice Act passed, is this Plan B to have someone confirmed to the board who will take an aggressive stance with the law and try to implement it through the machinery of the board?” said Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce.

Regular EFCA Report readers will recall our April 2009 posts that outlined areas where we believe the Obama NLRB will seek to reverse precedent:

• "What to Expect from President Obama's NLRB"
• "What to Expect from President Obama's NLRB (Part II)"

TheStreet.com today carries an interesting piece, ""Labor Law Debate Closely Watched," regarding the way unions representing transportation workers under the Railway Labor Act view the developments regarding EFCA.  The piece quotes Robert Roach, general vice president of the International Association of Machinists, extensively:

"If the law is changed under the National Labor Relations Act, that will fuel a debate we are having regarding the RLA election process, which currently is unfair," Roach says. "The RLA is governed and administered by the National Mediation Board, which at some point could alter its regulations. So the Employee Free Choice Act is important because it will help to form that debate, as to what changes if any could be made.

"To start that process, we would have to petition the board to make changes," he says

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More following Friday's New York Times report that Senate Dems are considering dropping card-check from EFCA, but retaining the troubling mandatory interest arbitration provision. 

At Commentary, Jennifer Rubin continues her coverage of EFCA developments, expressing skepticism that any such "compromise" would fly: 

If there is such a deal, those Red state Democrats will be back on the hot seat. With unemployment heading for double-digits, will they vote for “card check lite”? So long as Big Labor is proposing that government-appointed arbitrators would have the power to set terms and conditions of employment for first labor agreements and that employers’ right to control their private property be sacrificed, you can expect a battle royale, including a filibuster from opponents.

Following up, at Slate, Mickey Kaus hits the nail on the head, laying out a critique of interest arbitration we included in our earlier white paper on EFCA:

Opponents may need to come up with a new name for the bill (though "card check" was working pretty well for them). How about "federal pay determination"?  Keep in mind that not only does the apparent "compromise" propose abandoning the hoary idea that wages should be set in the marketplace, it also abandons the New Deal's substitute idea that wages should be set in labor contest where unions threaten to use their strike power and management threatens to survive a strike. Unions seem to have given up strikes. Instead they want to authorize an official--maybe even an actual federal bureaucrat--to simply swoop down and impose what would undoubtedly be a wage increase. That's more akin to FDR's notorious, failed National Recovery Act--except the NRA at least let industries set their own rigid wage scales.  ...

Note also that the arbitration provisions give now-unorganized workers a new, powerful incentive to unionize: Vote for the union, wait a few months, and an arbitrator will fly in and give you a raise. No strike. No fuss. No muss.

Kaus includes a link to his April piece wherein he recommended that business and other opponents begin to think of their own elements for inclusion in any labor law reform bill.  Well worth repeated reads now.

Finally, at NAM's Shopfloor.org, Carter Wood articulates an interesting possibility:

Here’s a theory, admittedly paranoid and probably giving labor too much credit: The NYT story represents a two-part jujitsu strategy by labor. Labor claims outrage at this “compromise,” but the removal of card check prompts business to emphasize how toxic the binding arbitration provisions are. THEN, labor agrees to drop binding arbitration too, leaving business sputtering about how the remaining legislation is still bad but struggling to articulate why. With business politically neutered, the Senate passes a bill with ambush elections, a gag on employer involvement in the election process, and increased penalties. Unions still wind up with a new ability to intimidate employees into joining unions and an election process slanted toward labor.

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Since the New York Times story yesterday, we've been following the developments regarding the supposed intention of Senate Democrats to drop the card check provisions from EFCA.  Our Twitter feed (see below right) has been compiling theories from all over following our Tweet early yesterday that Senate staffers were denying the leaked reports.  Other comment from around the web:

CBS News blog The Hotsheet reports that both proponents and opponents of the bill were quick to express doubt and/or displeasure with the Times report:

But representatives on both sides of the issue signaled in interviews with Hotsheet Friday that they are skeptical of the Times report. Josh Goldstein of American Rights at Work said in an interview that it is "premature to make any assumptions about what's going on in negotiations when the people who are in those negotiations are clearly stating that there is no deal."

"As far as I know, majority sign up is still on the table," he said. "And we're still fighting for it."

And Mark McKinnon of the Workforce Fairness Institute, a business group, told Hotsheet, "I don't think it's so much a compromise as it is a trial balloon."

At RedState, Brian Faughnan warns that the elimination of card check from the bill would address just one of EFCA's numerous serious flaws, leaving the bill's mandatory interest arbitration provision intact:

Calling this ‘binding arbitration’ is a misnomer. The phrase typically conjures images of an impartial expert deciding claims based on a pre-existing agreement. In this case you would instead have a bureaucratic ‘expert’ deciding on all provisions of a labor agreement. In a best-case scenario, workers and employers would be forced to adopt some least-common-denominator version of the contract governing other businesses in the same sector. In that case, say goodbye to innovation. In a worst-case scenario, you’ll see schills for labor or industry impose contracts specifically designed to further an agenda.

Similarly, an editorial in the Denver Post urges Sen. Michael Bennet (D-CO) to take a public stance on the bill, opining that the mandatory interest arbitration provision is the bill's larger flaw:

While we opposed the card check portion of the bill — the right to a secret ballot is a cornerstone of our democracy — it was never our biggest worry.

By far, the most economically destructive provision in EFCA is one that imposes binding arbitration if the parties fail to reach a contract agreement within 90 days.

This, in effect, means unions have zero incentive to bargain in good faith. They do have an incentive to make over-the-top demands, knowing they would be the starting point in arbitration hearings.

And worse yet, it puts government in the wage control business and has the potential to destroy companies — particularly smaller businesses.

At The Hill's Blog Briefing Room, Michael O'Brien posts that an un-named "anti-EFCA group" has released a poll indicating that mandatory interest arbitration is as unpopular a notion as card check:

60 percent of voters nationwide oppose the binding arbitration portion of EFCA — including 43 percent of the country that strongly opposes it, according to internal polling done by one of the groups working against EFCA.

Finally, TPM carries a piece relaying a quick opportunistic attack by Rep. Joe Sestak (D-PA) against Sen. Arlen Specter (D-PA), whom he hopes to unseat in the Democratic primaries:

"As an original co-sponsor of the Employee Free Choice Act, I strongly support the legislation as it was originally written," says Sestak. "Arlen Specter, however, announced that he not only opposed Employee Free Choice, but would prevent it from coming to a fair up-or-down vote."

"Arlen will have to explain to working families across Pennsylvania why he took the side of every Senate Republican to oppose this legislation as originally written." 

It seems that Rep. Sestak may have forgotten that long before he announced his intention to run for Sen. Specter's seat, he introduced an alternative to EFCA that eliminated card-check from the mix.

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Our Twitter page is now allowing us to pass most of these items along in near real-time.  But in case you aren't yet following us there, we'll continue to publish these media round-ups regularly.

 

LRIOnline has a piece expanding upon the meme also published advanced this week by Crain's Workforce Management -- that the NLRB appointed by President Obama might advance some variation of EFCA's elements by administrative rule-making even if the legislation were not to pass:

Wilma Liebman has made no bones about her support for reforming the nation’s labor laws generally, and she welcomes the debate on the Employee Free Choice Act specifically. Once she has a Board majority she will have the full power to implement massive labor law reform without the need for a single Senate vote.

Consider, for example, the vote period. The current 42-day vote window that unions complain about so wildly is completely Board created. The statute says nothing other than the Board will conduct an election. It could just as easily be 7-days or 14-days or 21-days after the petition is filed. The time limit is just a target, but the Board does a great job of meeting the 42-day target today and there is no reason to believe that they couldn’t meet a quicker target. So if unions can’t get a compromise on card-check, no problem. Just get the Board to shrink the vote window down to 7 or 14 days, which is effectively the same thing.  

Human Events has more commentary from Sen. John Thune (R-SD) who participated in a recent conference call to address the status of the Act: 

...Sen. Thune stressed the importance of not accepting compromise. Thune stated “the cloture vote is the critical vote” because – if the measure gets to the floor, Democrats may yet be able to muster the votes necessary to overcome a Republican filibuster. Even if the Employee Free Choice Act was revised to pass the cloture vote it “is going to move further to the left as you get into conference with the house…with pretty much most of the elements of the original bill when it comes out of conference.”

Thune is also quoted, along with labor relations analyst Bryan O'Keefe in today's Washington Times, regarding the impact on EFCA of Richard Trumka's announcement that he will seek the presidency of the AFL-CIO:

Analysts say Mr. Trumka and the AFL-CIO think now is the perfect time to win favorable changes to labor laws.

"EFCA would be a gold mine for the union right now," said Bryan O'Keefe, an independent labor specialist. "The intimidation would be rampant with this thing. And it's an easy way to boost union membership significantly."

Sen. John Thune, South Dakota Republican, predicted Thursday that Democrats would have a hard time passing the "deceptively titled and dangerous" EFCA, given divisions within the Democratic caucus and the absence of ailing senior Democratic Sens. Robert C. Byrd of West Virginia and Edward M. Kennedy of Massachusetts.

"This thing will hit businesses both large and small," Mr. Thune said. "Democrats and labor are working on a compromise, but there cant be a compromise on things like card check and mandatory arbitration."

Finally, the Alliance for Worker Freedom has launched "What Is Card Check?" -- an interactive online look at related issues. 

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NAM's ShopFloor.org has favorably cited our assessment of the impact of the Franken decision on EFCA's prospects:

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. 

(NAM also had an important tidbit yesterday on President Obama's intention to nominate George Coehn to head up FMCS.)

LaborUnionReport remains concerned that the current version may yet be sent to the floor soon:

While there is still the potential for compromise legislation to be crafted, Tom Harkin has threatened, barring any compromise, to send the legislation to the Senate floor for an "up or down vote" after July 4th (which is less than a week away).

Kevin Bogardus reports in The Hill that Democrats and Labor seem cautiously optimistic yet politically realistic about the bill: 

“Franken’s victory certainly helps our chances of passing EFCA, but there is still plenty of work to be done,” said Thea Lee, policy director for the AFL-CIO.

“Working families need him in the United States Senate to help restore the economy, rebuild the middle class and renew the American Dream for all workers,” said Anna Burger, chairwoman of Change to Win and secretary-treasurer of the Service Employees International Union.

The bill should pass overwhelmingly in the House. But unlike in the last Congress, the Senate is working on the bill first to see if a compromise can be worked out to gain cloture.

Sen. Tom Harkin has been the lead negotiator on a compromise. The Iowa Democrat says Franken needs to be seated to have enough votes for Senate passage.

“There are multiple factors at play. Seating Sen. Franken is definitely one of them, but this bill is a heavy lift. Sen. Harkin is committed to moving this bill forward in a timely fashion,” said Bergen Kenny, Harkin’s press secretary.

Still, there is no question where Mr. Franken stands on the legislation:

 

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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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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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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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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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Santa Clarita, California's KHTS 1120 AM reports that major Secret Ballot Protection Act proponent Rep. Buck McKeon (R-CA) continues to voice his opposition to EFCA:

“The American economy is in real trouble. Americans are losing their jobs and their homes. The notion that Congress would take up an anti-worker, special interest payback like this one – particularly at a time like this, with the economic challenges we face – is unconscionable,” said McKeon. “The Employee Free Choice Act is an affront to basic democratic rights and it must be defeated.”
 

Politico follows former (and future?) Presidential candidate Mitt Romney's barnstorming through Virginia this week which will include:

[an] appearance at an Arlington business forum on the potential impact of the Employee Free Choice Act on Virginia businesses and workers.

On the Opposing Views website Maverick Strategies LLC's Bret Jacobson questions whether class warfare in America has really reached the point to compel a drastic overhaul of our entire system of labor law:

Finally, most of us would rather have a good (though imperfect) job, rather than none at all. EFCA’s negative effects on the economy could lead to job losses totalling hundreds of thousands, if not millions. That brings us back to Capitol Hill.Aside from the political investment of hundreds of millions of dollars by union bosses who have openly declared that EFCA will be their payback, Americans have little appetite for EFCA. Employees certainly don’t like the idea of losing their right to vote on the job, and editorial boards across the nation have concurred. Employers certainly don’t like the notion of having a big-government arbitrator tie their hands so they lose flexibility – akin to one industry that’s driving off a cliff due in large part to miles of terrible union contracts.

Don’t believe me. Ask yourself: Is there any place in American that more resembles a dystopian, Dickensian world than Detroit? And is there any other place where more unions would be less helpful?

And in Hotel Interactive, the American Hotel and Lodging Association (AHLA) continues to lobby its membership against "compromise" efforts:

The compromises offered by pro-EFCA supporters are no compromise. So far, the compromises whispered in Congress—mail-in authorization cards and changes to the arbitration method—are the same original bad EFCA demands just wrapped up in a new package.
 
AH&LA opposes all the compromises that have been floated by EFCA proponents, calling them inadequate. None of them protect our members’ employees from organized labor intimidation or preserve the secret ballot process.
 

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ShopFloor.org notes the irony in the support of EFCA by the Applied Research Center, a "racial justice think tank":

The Employee Free Choice Act is only part of this radical leveling agenda, true. Still, destruction of the secret ballot was a hallmark of the Jim Crow era that deprived African-Americans of their rights. In the pursuit of “racial justice,” this group wants to recreate those days of discrimination.    

How sad.  

The Hill's Blog Briefing Room reported on Monday in "Pelosi: Dems in Congress 'Committed' to EFCA”:

Democrats in Congress are "committed" to passing the Employee Free Choice Act (EFCA), House Speaker Nancy Pelosi (D-Calif.) said Monday.

Pelosi told the AFL-CIO's Building and Construction Trades Department conference in Washington that the strength of the middle class is directly tied to the strength of organized labor.

"Our work in Congress is based on two truths: America's economy is only as strong as America's middle class; America's middle class is only as strong as America's unions," Pelosi told the labor group today, according to prepared notes.

"That is why Congress is committed to passing the Employee Free Choice Act, and why President Obama is ready to sign it into law," the Speaker said.

 

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The Washington Post today editorializes that business interests are not open to discussing compromises on EFCA, "The Imperfect Union Bill":

That approach is being floated in Congress by, among others, Sen. Arlen Specter (D-Pa.), who suggested that an election be held within three weeks of the union filing such a request with the National Labor Relations Board and that union organizers be allowed "equal time under identical circumstances" to make their pitch to employees if management has held "captive audience" speeches making the anti-union case. Some of labor's strongest backers in Congress, aware that the measure as written probably lacks the 60 votes needed, are discussing this and other potential compromises.

The other side remains dug into a "no compromise" stance. In a "Dear Senator" letter last week, the Coalition for a Democratic Workforce, composed of 580 organizations including the U.S. Chamber of Commerce and the National Association of Manufacturers, summarily dismissed any such discussion. "Let us be clear and frank on this matter; there can be no acceptable 'compromise' on any issue of labor law reform due to the very real threat posed by EFCA," the group wrote. Moreover, the coalition failed to acknowledge any flaw in the existing process -- except to the extent that it suggested, falsely, that the current playing field is tilted in favor of unions. That hardly sounds like bargaining in good faith.

The National Association of Manufacturers' (NAM) ShopFloor.org blog poses a few thoughts in response to the WaPo editors:

This is a classic example of Washington political thinking that elevates process over substance, viewing compromise and consensus as valuable in and of themselves. To the vast majority of NAM members, businesses small and large, the possibility of forced unionization and a government-imposed binding arbitration are matters of life and death. A “compromise” looks like, “Please, just kill us a little bit…later.”

And who is it exactly doing the “compromising” up on Capitol Hill? Senator Tom Harkin compromising with Sen. Arlen Specter? The AFL-CIO compromising with the Teamsters? Starbucks with Costco?

   *  *  *  

Organized labor does not win every union organizing election, and that’s “the problem” they want the Employee Free Choice Act to fix. But labor has never engaged in good faith discussion about the issue, starting with its decision to dishonestly represent the bill as “free choice.”

Given that the legislation is a raw power grab by organized labor, where’s there any room for compromise?

Reflecting similar sentiment, NJBIZ.com features a piece today on increased regulation of small business by the 111th Congress and the Obama Administration, "A More Sinister Side to Stimulus":

“Any time there are more regulations that small businesses must comply with, it takes away from their focus on their core competencies,” said Don Mallo, vice president of human resources at The Extensis Group, a professional employer organization based in Woodbridge. “It is difficult for them to keep track and comply with a myriad set of regulations … they don’t have the infrastructure in place to comply.”

The federal stimulus bill, formally called the American Recovery and Reinvestment Act of 2009, and the Fair Pay Act already are law; Congress is considering another 10 measures.

“The number-one law on everyone’s mind is the Employee Free Choice Act,” Mallo said. It represents “a complete overhaul of the balance of power in labor relations.”

   *   *   *   

Mallo said another disturbing aspect for businesses is that the proposed Employee Free Choice Act specifies that after a union wins an election, negotiations on a new contract with the employer automatically go into binding arbitration if no agreement is reached within 120 days. “That is even more radical than the loss of the secret ballot,” he said.

And the South Bend Tribune Business Weekly suggests that prudent employers continue to oppose the measure, while preparing for the worst case scenario:

As union leaders press for passage of the federal Employee Free Choice Act (EFCA), business leaders are opposing the change while positioning themselves to head off the perceived increased likelihood of unionization if the measure becomes law.

Continue Reading...

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More comment from around the web regarding today's news that Senator Harkin's (D-IA) EFCA compromise efforts appear to maintain some form of mandatory interest arbitration in the bill.  Elsewhere in today's Wall Street Journal, former Senator George McGovern expands upon his previously stated opposition to EFCA, taking exception to the arbitration provisions:

My perspective on the so-called Employee Free Choice Act is informed by life experience. After leaving the Senate in 1981, I spent some time running a hotel. It was an eye-opening introduction to something most business operators are all-too familiar with -- the difficulty of controlling costs and setting prices in a weak economy. Despite my trust in government, I would have been alarmed by an outsider taking control of basic management decisions that determine success or failure in a business where I had invested my life savings.

When it comes to labor disputes, both parties should be guaranteed a real chance for compromise under the joint economic threat of contract breakdowns. George Meany, president of the AFL-CIO for nearly 30 years before retiring in 1979, had it right in condemning mandatory arbitration as "an abrogation of freedom."  

ShopFloor.org expands upon McGovern's piece:

Organized labor regards the right of the worker to withhold his labor as almost sacred, a core principle they fought to defend and write into law. And now labor’s leaders want to abandon that principle under the guise of “free choice.”

It’s hard to believe that the rank and file really want to surrender their rights just because labor bosses tell them to.

Finally, Diana Furchtgott-Roth of the Hudson Institute writes:

Binding arbitration could have even more pernicious consequences than ending the secret ballot. It would allow an undefined arbitration board, appointed by the Federal Mediation and Conciliation Service, itself headed by a political appointee, to set compensation packages for firms and workers that they would be forced to accept.

Unlike voluntary arbitration, the parties would not have an opportunity to choose members of the panel, nor would they have recourse to a higher authority, such as the courts, if they were dissatisfied with the results. Workers could be required to accept lower salaries and less vacation than they could get elsewhere, and firms could be forced into unproductive agreements that could eventually lead to bankruptcy.

With just a few lines of legislative language, Congress would revoke for newly-organized firms the principle of free collective bargaining—that employers and unions may walk away from a contract they find unsatisfactory.

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Not surprisingly, much of the internet buzz on EFCA this morning centers on Senator Arlen Specter's announcement yesterday that he intends to join the Democratic Party.

ShopFloor.org relays former NLRB member Peter Kirsanow's thoughts; and, calls out AFL-CIO Legislative Director Bill Samuel for continuing to say anything -- no matter how mischaracterized, paraphrased or manipulated -- to exaggerate EFCA's support.

After quoting one such soundbite, Politico suggests Specter's move gives "New hope for stalled labor bill," and reports:

The White House has played little role in the debate. But a Democrat close to the administration said Specter’s switch “is going to inform where [EFCA] is going. Everybody in labor is gonna see new life in EFCA.”

Asked if that meant the White House may take a more active role, the Democrat said: “If you’d asked me last night, I would have given you an emphatic no. But now, it’s a little in flux.”

At the Washington Post, Chris Cillizza provides a "White House Cheat Sheet: 100 Days Winners and Losers."  Assessing the early stages of President Obama's term, the piece includes this Loser:

EFCA: The Employee Free Choice Act, once thought to be THE fight of the 111th Congress, disappeared not with a bang but with a whimper when Specter, seeking to protect his right flank in a Republican primary, came out against it. And, although he has now switched political teams, Specter made clear in his statement on Tuesday that he still opposed EFCA. Labor operatives are optimistic that with Specter now caucusing with Democrats that some sort of deal can be worked out but much work would have to be done to convince other members of the party -- Arkansas Sen. Blanche Lincoln, for one -- to get behind the legislation.

At The Huffington Post, Art Levine looks with enhanced optimism at what President Obama can accomplish on behalf of labor, given the administration's action to date and a stronger caucus now in the Senate.  The piece provides great insight into the many other things the labor movement may call for if EFCA is ultimately ruled a dead issue in the 111th Congress.

And at Slate, Mickey Kaus links to the blog Suitably Flip for a piece about a humorous bit of anti-EFCA politicking based on Specter's switch:  "Democratic Opposition to Card Check Grows."

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Roll Call today notes that organizations on both sides of the EFCA debate spent the recent congressional recess blanketing lawmakers’ districts with rallies, press ops, advertisements and phone calls.  Among those speaking out:

A coalition of minority business leaders — including the Asian American Hotel Owners Association; the National Association of Black Hotel Owners, Operators & Developers; the National Black Chamber of Commerce; the Latino Coalition; and the U.S. Hispanic Chamber of Commerce — held their own press conference Tuesday to continue lobbying against the card check bill.

“They want to come in and run your business for you and probably run it into the ground,” National Black Chamber of Commerce President Harry Alford said.

The Cleveland Plain Dealer reports that longtime EFCA advocate Sen. Sherrod Brown (D-OH) predicts revisions to the bill in the coming months:

Although Brown backs the legislation in its current form, he says it won't get enough votes for passage in the Senate now that former backers including Pennsylvania Republican Sen. Arlen Specter have withdrawn their support.

He said he expects a compromise will be reached to continue the secret-ballot elections, but require them to be conducted swiftly and handled in a way that doesn't inordinately favor businesses.

And Human Resources Executive Online carries a story regarding ongoing efforts toward the reunification of the AFL-CIO, Change to Win and the NEA into a single labor coalition:

Labor unions view the Obama administration as "representing the redefinition of the government's role," says Change to Win spokesman Greg Denier, adding that labor leaders are already uniting to work for the enactment of the Employee Free Choice Act.

 

Many believe a reunited labor movement would strengthen the unions' ability to work with the new administration and advance its agenda.  

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The National Indian Gaming Association (NIGA) has joined the National Congress of American Indians (NCAI) in opposing the Employee Free Choice Act in its current form.  At its annual meeting last week, NIGA unanimously passed a resolution criticizing the bill for failing to properly recognize the sovereignty of native tribes.  As reported in Indian Country Today:

The EFCA battle is a top priority in Indian country. If passed, the EFCA would forward a creeping erosion of tribal sovereignty in the area of labor relations on tribal land. For 75 years after the National Labor Relations Act was created in 1935, tribes were treated as governments in terms of their employees on reservations. That changed in 2007 when a federal circuit court upheld a National Labor Relations Board ruling that a casino owned by the San Manuel Band of Mission Indians was subject to federal labor laws.

“Tribes are recognized in the Constitution as governments; tribes should be recognized in the statutes as governments,” NIGA Executive Director Mark Van Norman said. “We’re going to devote a lot of time and energy to securing the treatment of tribes as governments under EFCA and the NLRA.”

The resolution comes as Rep. Buck McKeon (R-CA) spoke at the annual meeting, joining a bi-partisan host of politicians seeking to speak to Native American constituents.  McKeon has championed the Secret Ballot Protection Act in previous sessions of Congress and is a fierce opponent of EFCA.  

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At the Enlightened Despot blog, Akhbar the Great cautions people against ignoring the full import of the Employee Free Choice Act, while getting caught up in rhetorical abbreviations.  AtG would not refer to EFCA simply as "card check":

And this isn’t just a technicality. Other countries have a card check policy, but they of course don’t have EFCA on the books - it’s a proposed American law. Meanwhile, EFCA contains a lot of significant measures unrelated to card check. Indeed, card check itself is becoming increasingly irrelevant - there is simply no reason to think Democrats can put together 60 Senate votes for any bill that includes it, at least not until after the 2010 midterms.

At this point, the policy to watch is mandatory binding arbitration. Mandatory binding arbitration would require management and a newly formed union to enter a binding arbitration process for a two-year contract if the two sides are unable to come to terms on their own. The major compromise bills that have been introduced contain neither mandatory arbitration nor card check, and are about as popular with labor as Japanese car companies. Meanwhile, anti-labor types are worried that Democrats are planning to drop card check as a compromise for enacting mandatory binding arbitration.

The Truth About the EFCA blog carries a Columbus Dispatch story which it asserts highlights the dangers of card-check organizing:

An Ohio union organizer has been fired after he was caught forging documents to deduct money from public employees' wages to pay for political activity, the Service Employees International Union said yesterday.

Becky Williams, president of the SEIU District 1199, said she thinks this is an isolated incident, but the union is continuing to investigate.

More:

• The American Spectator explores the impact of EFCA on the widely ignored current multi-employer pension crisis in "A Good Time to Start Liquidating"
• ShopFloor.org criticizes American Rights at Work for demonizing American industry instead of arguing the merits of EFCA
• The American Issues Project has audio from Gov. Mitt Romney's Monday call regarding mandatory interest arbitration.
• Construction exec Brett McMahon's recent op-ed piece is reprinted in today's Washington Examiner

 

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The HR Capitalist has had a few posts lately about EFCA, most recently criticizing HR professionals who have adopted an apathetic stance.  Last week, the blog featured another installment in a series taking on the pro-EFCA spin, noting that under current law "Unions can say whatever they want during the organizing process, and there's little the company can do about it."  Argues HRC:

That's right, you haven't heard of that, because there aren't laws on the books that really address that.  Employers take the vast, vast majority of unfair labor practice charges, and meanwhile, union organizers can say anything they want. 

That's the current system folks.  Eliminate the right to a secret ballot and the campaign that comes right before it (when the employer can talk to its employees about the promises made by the union organizers), and you've got a system that's going to disappoint the vast majority of employees once the union represents them.

Intimidation by employers?  How about promises made by organizers?  Can we look into that?

Today, The Harbus, the independent student weekly of Harvard Business School, announces that the "HBS Republican Club to Implement 'Card Check' in Expansion Effort."  The club's "Plan intends to enroll 100% of MBA students into the GOP."  How?  Per The Harbus:

HBS Republican Club officials will visit each section and ask MBA students to join the Republican club by signing a clipboard. Those who refuse will be visited by club officials who resemble cast members from the Sopranos. Intimidated students will quickly sign the clipboard.

As soon as 51% of MBA students have signed the clipboard, all MBA students will automatically be enrolled in the HBS Republican Club.

Club dues of $15 will be added to each student's term bill. Despite the diverse political affiliation of MBA students, the vast majority of club dues will be donated to Republican political campaigns. Other dues will be used to maintain a private country club for the enjoyment of high-level Republican Club officials.

The program will be aptly named the "MBA Student Free Choice Act."

Pat Cleary highlights the lack of factual support for the pro-EFCA argument that NLRB elections take too long.  Citing to the Board's 2008 annual report, he notes that last year, initial elections were held within a median of 38 days, one day less than the 39 median days achieved in FY 2007; and, that 95.1 percent of all initial elections are conducted within 56 days of the filing of the petition.  His conclusion: 

It has been discouraging how the facts have been routinely discarded throughout this debate. The unions' henchmen - and women - in the Congress are often heard railing about election delays as a central reason for undermining democracy. From a plain examination of the facts, it looks like they'd better find another argument.

Linking to the above-mentioned piece, NAM's ShopFloor.org suggests: "Or they’ll just shout louder."

More coverage and commentary:

• "Card Check: Bad Idea at the Wrong Time" -- Bacon's Rebellion
• "The Employee Free Choice Act Could Kill My Company" -- The Truth About The EFCA
• "Romney slams binding arbitration" -- The Hill
• "Sen. Ensign Says Labor Not Giving Up on Card Check" -- Human Events

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NAM's ShopFloor.org follows the money which, in the past, has flowed from organized labor to MSNBC's new pro-EFCA host Ed Schultz.   During Mr. Schultz's inaugural week on the air he featured Steelworkers' President Leo Gerard and American Rights At Work's Mary Beth Maxwell as guests.  After noting that both the Business and Media Institute and Center for Union Facts have recently highlighted speaking fees paid to Schultz by various unions, NAM celebrates the continued availability of union financial information via the Department of Labor's OLMS website:

BMI cites and reposts documents gathered from the Department of Labor’s website. We were worried that the new Administration would take down the very useful search engines and documents on union expenditures from DOL’s site. Congratulations to Secretary Solis for standing by the Administration’s commitment to transparency.

In Hotel Interactive, Joseph McInerney, President of the American Hotel and Lodging Association (AHLA), rebuts the pro-EFCA opinion column of consultant Stanley Turkel:

There is a reason why the American hotel industry—and American business—is spending millions of dollars and hundreds of thousands of man-hours to fight this bill. We trust our employees to make their own decision about workplace representation in private. The unions believe otherwise, or else they would not try to twist their lobbying campaign using any possible argument in order to dupe Congress into passing this travesty of a bill. For the lodging industry, this bill is just wrong—wrong in so many ways. Congress must reject EFCA resoundingly, for not only economic reasons, but rational and moral ones as well. 

Politico's Andie Collier reports that the "Hot contest over 'card check' continues."  She spends time with Pollster.com's Mark Blumenthal in an effort to decode the wildly varying poll results regarding EFCA:

If Blumenthal’s breakdown is any indication, the job of comparing apples to apples poses a formidable challenge in any circumstance. But when it comes to the Employee Free Choice Act, the task is made more complicated by another major factor: the public’s near-total lack of knowledge on the subject.

“EFCA is an area where pollsters are in danger of measuring a nonattitude, where there really isn’t an attitude to measure,” he says.

And when the public knows little or nothing about an issue, he says, poll respondents are typically reacting to the information provided by the pollsters themselves and forming an opinion on the spot — making them far more susceptible to variances in wording and context.

And at the ChamberPost blog, in response to recent comments by SEIU President Andy Stern, blogger Brad Peck asks "EFCA is the Answer When?"   Regarding Mr. Stern's citation of economic data from 1935-1945, Peck pokes:

So, according to Stern rapid, mass, unionization is the best mechanism for creating shared prosperity provided that:

• There is a global depression lasting at least ten years;

• There is a world war which lasts six years and kills over 60 million people;

• Brazil, India, China, Japan, and Germany reset their economies to post-WW2 levels;

• Britain and France reset their economies to post-WW2 levels, and agree to re-experience economically the breakup of their colonial possessions;

• "From Stettin in the Baltic to Trieste in the Adriatic" an Iron Curtain descends "across the Continent."

Egad, I hope we don't do that again, but sure, bring up EFCA then. For now, can we table it?

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Regarding Senator Arlen Specter's (R-PA) surprising announcement earlier that he will oppose cloture and passage of the Employee Free Choice Act, the Huffington Post's Sam Stein reports:

Labor officials are incredibly distraught and, in some cases incredulous, noting the Specter co-sponsored the bill in 2003 and voted for cloture just last year. But while it is a setback for the legislation's chances, Democrats are not conceding defeat. According to the Huffington Post's Ryan Grim, Senate Majority Leader Harry Reid declared after Specter's speech that "He's not the only Republican who has indicated a willingness to consider something being done... He's not the only suspect."

In The Atlantic, Marc Aimbinder writes that Specter's announcement did not close the door on EFCA for good:

By 2010, regardless of whether Specter is re-elected, Democrats will (probably) have another shot at card check, and here Specter is indicating a political compromise: give me the cover for two years, and I'll give you the 60th vote in 2010. Of course, if the economy IS in recovery by then, the urgency to pass pro-labor legislation might be less acute.

SEIU President Andy Stern released a statement initially suggesting Sen. Specter is a hypocrite, but ultimately striking a more conciliatory tone:

It's simple: If you support democracy, you should support the right to debate legislation that could improve the lives of millions of working Americans, pump $49 billion into the economy at a time when we desperately need it, and that's supported by the vast majority of the public.

We look forward to working with Sen. Specter and the rest of the Congress to find ways to give workers the free choice to join a union free from intimidation and harassment.

As of this evening, the AFL-CIO had not yet posted it on its media webpage, but both its blog and TPMDC featured portions of a statement by President John Sweeney:

Today’s announcement by Sen. Specter—a sponsor of the original Employee Free Choice Act who voted for cloture in 2007—is frankly a disappointment and a rebuke to working people, to his own constituents in Pennsylvania and working families around the country.

 

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More coverage across the internet regarding Senator Specter's floor statement today that he will oppose cloture on EFCA:

• "Specter to oppose cloture on card check" -- The Hill
• "Specter says he will oppose labor bill" -- Politico
• "Specter: I'll Vote No on Employee Free Choice Act" -- TPMDC
• "Specter Won't Back Card-Check" -- Wall Street Journal online
• "Specter comes out against 'Card Check'" -- Mcall.com's Pennsylvania Avenue blog
• "Card Check: NAM President Engler Reacts to Specter Statement" -- ShopFloor.org
• "Breaking News: Sen. Specter Will Vote Against Cloture and Final Passage of EFCA" -- Americans for Tax Reform
• "Breaking News: Arlen Specter acts like a conservative for once" -- Michelle Malkin

 

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The Point of Law blog had an excellent EFCA Round-Up of its own yesterday. 

The Harrisburg (PA) Patriot-News criticizes EFCA, noting the "Proposed legislation fails to offer secret ballot for all workers":

In the end, however, the choice about the workplace needs to be the result of nothing less than a secret ballot by the workers involved.

It also should come after employees are able to gather all the information necessary to make an informed decision. This legislation does neither and should not be passed.

Wharton professor Herb Denenberg has a lengthy broadside against EFCA in the Philadelphia Bulletin.  "Socialism Comes to America, and You Better Believe It" begins:

Coming to a country near you: Labor contracts dictated by federal arbitrators who know little about the businesses they will be regulating by their decisions, and the advent of near universal unionization. The country near you is your country — yes, the United States of America.

Columnist John Brummett takes on card check in The Arkansas News, and astutely concludes:

What’s wrong with insisting that there’ll always be a contemplation period during which both sides can be presented, after which nobody knows how you vote?

Pressure gets exerted during these campaigns, yes. It’s not always pretty. But at least the opportunity exists now for the pressure to come from both sides rather than unilaterally and stealthily.

If there is rampant abuse by employers of workers during the election period, as labor alleges, then we need a tougher regulatory and prosecutorial climate under this Democratic president rather than an end run on elections with secret ballots.

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On NJ.com's NJ Voices blog, reader Anthony Zagarino, an HR professional, posts his reasoned, dispassionate opposition to Senator Robert Menendez's (D-NJ) support of EFCA.  Zagarino concludes:

My suggestion is that the Congress engage Human Resources professionals to study legislation of this ilk before they are voted upon. Why are you not seeking the advice of experts? By that I mean professionals like me who have to manage the laws you pass and have to live with their consequences. We know first hand what it takes to implement a law in the workplace and whether it will be harmful or beneficial to both employers and employees. But our representatives continue to make uneducated decisions on the lives of millions.

Today's Washington Post features a piece by Alec MacGillis which provides a concise current state of the debate, opining that the rhetoric of both sides has become more extreme.  Midway through the piece comes this note:

Price V. Fishback, an economics historian at the University of Arizona, said both sides overstate their case. The growth of unions did lead to wage gains both in union and non-union companies, he said. But to attribute mid-century prosperity to unions is going too far -- for one thing, union density began to go into decline in the early 1950s, after the passage of the anti-union Taft-Hartley Act.

Columnist Patrick McIlheran today questions why unions need the flawed card-check system in order to rejuvenate their ranks:

That's a pity in that unions presumably do offer some real benefit to those who belong, as I, grudgingly, do. If so, you'd think they could make their case without betraying democracy.

But the fact is that even if their law is triumphant and unions again have the whip hand, it won't usher us back to the golden 1950s, when the benefits were rich and the jobs permanent. As Brink Lindsey pointed out in an insightful new paper for the Cato Institute, what's changed since that era of "nostalgianomics" hasn't been labor law but, instead, an end to the old New Deal's pervasive cartelization of the American economy.

Jonathan Cutler, author of the book "Labor's Time: Shorter Hours, the UAW, and the Struggle for American Unionism," writes in today's Hartford Courant that discarding the NLRB's "contract bar" doctrine should be a stronger priority than EFCA:

But that strong labor movement depends on real employee free choice. In the last instance, union revitalization does not await the end of the secret ballot in union elections but the end of the contract-bar doctrine and the freedom to replace ineffectual unions with nimble, hungry challengers.

 

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ShopFloor.org expertly exposes the latest disingenuous pro-EFCA talking point -- i.e., that EFCA does not eliminate secret ballots, it merely "gives employees the choice" of whether to use card-check or an election:

Here’s the other reason why the union line about “choice” is a dishonest talking point: In the real world, it’s very, very rare that a  company’s employees decide how to handle an organizing campaign.

Union organizers run the show. And they don’t care what’s in the employees’ interest. They care about the union, union power and union dues.

Highlighted in the ShopFloor piece is the testimony of employee Larry Getts, who testified about his card-check experience at today's Senate H.E.L.P. Committee hearing.  As to whether or not he and his co-workers controlled the choice about organizing strategy, Mr. Getts explained:

Looking back on how that first meeting was handled, I believe the UAW official viewed the meeting as a simple formality -- as if the matter had already been decided between the UAW and Dana Corporation, and the my views and the views of my coworkers were almost irrelevant.

The New York Times notes "Fierce Lobbying Greets Bill to Help Workers Unionize":

The lobbying is focusing on eight or so Senate Democrats and Senator Specter, whose votes are seen as up for grabs. The Democrats include Mark Pryor and Blanche Lincoln, both of Arkansas, Ben Nelson of Nebraska, Mary L. Landrieu of Louisiana and Mark Warner of Virginia.

Today's Financial Times reports:

Legislation to make it easier for US workers to form unions was introduced in Congress yesterday, setting up a battle between business and employees' groups and sparking a broker downgrade to Wal-Mart, the world's biggest retailer.

More Coverage:

• "Here comes card-check/EFCA: Another bi-partisan bridge to nowhere" -- L.A. Times "Top of the Ticket" blog
• "Supply Chain News: Card Check Rule Battle Starts to Really Heat Up" -- Supply Chain Digest
• "Former Whirlpool union president opposes card check legislation" -- The City Wire
• "Dem Senators Cooling on Card Check" -- The Hill
• "NRF Strongly Opposes Introduction of Anti-Worker Union 'Card Check' Legislation" -- National Retail Federation
• "Democrats open to compromise on card check" -- Associated Press

 

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The Moderate Voice blog features a variety of authors from various points along the political spectrum, and seeks to "offer an independent voter’s irreverent comments, and serious analysis of events, issues and people in the news."  Contributor Patrick Edaburton recently expressed his concerns about the Employee "Free Choice" Act.  The post itself is fairly bare-bones and features a few of the critical ads (McGovern, "Johnny Sack") running against EFCA, but Mr. Edaburton continues the conversation with commenters in the string below his original piece. 

At Slate, Mickey Kaus continues his coverage of the Act, passing along commentary from a recent breakfast debate.  Kaus labels a "parody of liberal Washington meddling," the description by Commentary magazine's Jennifer Rubin of EFCA's mandatory interest arbitration provision:

This is far more extreme than the National Industrial Recovery Act of the New Deal, which at least allowed industries to devise their own "codes."  In the case of the EFCA, the government would be in the position to directly set wages, benefits, and work rules for any business with a union agreement.

The current Weekly Standard also contains this tidbit via Fred Barnes, countering the recent statement issued by several pro-union economists:

Unions spur unemployment, and "there is no question" about it. "High union wages that exceed the competitive market rate are likely to cause job losses in the unionized sector of the economy." That is the unvarnished conclusion of one of the country's most admired economists. From 1970 to 1985, a state with average unionization had a rate of unemployment 1.2 percentage points higher than a state with no unions. This represented "about 60 percent of the increase in normal unemployment" in that period.

Okay, a finding from several decades ago may be a bit dated. But the phenomenon of how unionization affects unemployment isn't. Nor is the economist--Lawrence Summers, formerly president of Harvard and now President Obama's chief economic adviser. In this week's Fortune, Nina Easton calls him "the mastermind" of Obama's economic policy. His influence has limits, however, for Obama is aggressively promoting unionization at the worst possible time, smack in the teeth of a deepening recession with soaring unemployment.

Finally, covering similar ground to our white paper on EFCA, the American Enterprise Institute (AEI) has issued a concise paper, "Card Check: Changing the Rules fo Collective Bargaining."  Noting the current atmosphere suggesting the potential for compromise, AEI scholar Thomas Gies notes:

The new administration might trade the card check feature of the EFCA for a “quickie election” scheme modeled on the procedures used in some Canadian provinces. While this proposal might be good politics for card check supporters, the business community and others concerned about reviving the economy should be wary. A careful look at the Canadian experience suggests that it has very little to recommend itself.

 

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In "It's no secret: Democracy thrives with secret ballot elections," the editorial board of the Sun-Sentinel asks Sen. Bill Nelson (D-FL) to withdraw his support of EFCA if Sections 2 and 3 remain intact:

The legislation's backers insist it's needed to counter pressure and bullying from management. But Big Labor would be better off prodding the new administration to enforce existing law and bolster agencies that were created to support employee rights.

Beyond that, the card-check bill has another major flaw. It would empower federal arbitrators to impose a two-year contract on an employer and union after just two months if the two sides are unable to come to an agreement. Either party could end up stuck with a deal they don't want.

Self-professed small business-owner Donald Klym urges readers of the Minot (ND) Daily News to "Oppose this legislation":

People may argue that this bill will not affect small businesses, just the large evil companies, but let's not be naive. This isn't a bill to help the employee. Instead, it's a way to transfer more power to unions and government while limiting the freedoms of individual Americans.

This bill is not good business nor for the workers and families who depend on jobs here. I strongly urge the people of North Dakota to stand up and oppose this legislation.

The editorial board of the Lynchburg (VA) News & Advance criticizes its Democrat representatives for hedging on EFCA, proclaiming "Congress' Chain Needs Yanking When it Comes to Card Check":

It’s not a hard choice, gentlemen: Do you support the right of an American worker to decide, in secret and in private, whether he wants to be represented by a labor union on the job? Yes or no? And no dodging the question.

Unfortunately, that’s what Sens. Webb and Warner and Rep. Perriello are doing on this matter. They’re trying to have it both ways, cuddling up to Big Labor in Washington and voicing their concerns back home.

That’s just not good enough. Make up your minds, folks.

And in "Musings,  Random & Otherwise," Boston Globe columnist Jeff Jacoby cites a double-standard in political semantics, including with regard to EFCA's title:

But what happens to such fastidiousness when it comes to terms coined by liberals? Terms like "Fairness Doctrine" - an Orwellian label for government stifling of untrammeled political speech over the airwaves. Or like "Employee Free Choice Act," a benign title for legislation that would deny employees the right to a secret ballot in workplace elections. Strange, isn't it, how the concern with terminological exactitude kicks in at the appearance of a freighted expression from the right, yet fades into the mist when the language comes from the left?

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Yesterday's DC Examiner declared the "Union bill a mine field."  Wondering if six weeks until Spring Recess is enough time to introduce what was once declared a top priority of the Democratic Congress, the piece notes:

... the legislation, which would make it easier for unions to organize workplaces, has turned into a political minefield for the Democrats who, despite wide majorities in both chambers, have pushed action on the legislation into the summer to avoid what one blogger called “the mother of all labor brawls.”

At Slate, EFCA critic Mickey Kaus "Generalizes Wildly from Fragmentary Personal Experience," however astutely.  His conclusion:

Intimidation isn't required for the results of a public ballot to diverge from a secret ballot (and from the true choice of the voters). All that's required is a desire not to tell your pro-union buddy to his face that you think he's wrong. ...

NAM's President John Engler told reporters yesterday:

We think this is the single most destructive thing you can do to the competitiveness in the country. And the idea that 7.5 percent of the private sector workforce that is unionized that those unions should be able to take over the other 93 percent of the workforce through the side doors is worthy of very extended debate in Congress and very careful deliberation. It shouldn’t just be reported as a political payback; labor wins the election labor gets to have this. The consequences of having arbitrators do work rules is very ominous for our competitiveness.

And at National Review Online, Mallory Factor declared EFCA "The Ultimate Anti-Stimulus Plan":

Monopoly bargaining violates employees’ freedom and is therefore in itself bad policy. But for Congress and the Obama administration to help Big Labor foist monopoly bargaining on millions more workers now, as the national economy reels from the combined impact of the housing and stock-market crashes, would be fatal to our hopes of timely recovery. And we can expect that the increase in unions’ power and numbers will impair U.S. competitiveness for generations to come.

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In addition to the interesting Op-Ed piece in today's Washington Times, there are a number of other pieces running today about the Employee Free Choice Act.

At Politico, author Brett Joshpe submits "Local politics key to card check."  After noting the lack of popularity of the bill among the voting public, Joshpe observes:

While the EFCA will probably sail through the House of Representatives, Republicans in the Senate must remain unified to prevent a 60-vote majority from pushing the EFCA into law. They should insist upon debating the measure so that Americans know exactly what “changing the ways of Washington” means. Perhaps some moderate Democrats will come to their senses, as well. All they need to do is look at public opinion polls back home to realize the political risk of not doing so.

Syndicated columnist Thomas Sowell shares "Random observations on the passing scene" via today's Contra Costa Times, including:

More frightening to me than any policy or politician is the ease with which the public is played for fools with words. The latest example is the "Employee Freedom of Choice Act," [sic] a bill that will do away with secret ballot elections among workers voting on whether to be represented by a union. It is an open invitation to intimidation — which is to say, loss of freedom of choice.

The Virginian-Pilot reports on opposition to EFCA by the Virginia Beach Hotel-Motel Association and the Virginia Hospitality and Travel Association.  Said new Association President Vern Burlage:

"Employees can sign cards and everybody will know how they voted....  Secret ballot is the way to avoid group pressure and intimidation. There's no minimum membership requirement and it targets small businesses, especially hotels."

And elsewhere in Virginia, the Richmond Times-Dispatch runs an editorial criticizing EFCA sponsor Rep. George Miller's recent disparagement of the secret-ballot election:

"The Employee Free Choice Act still provides for an NLRB election process, triggered when 30 percent of the workers petition for one -- same as current law. But a majority of workers could opt for the less divisive majority sign-up process, and the employer would not be able to veto that choice."

Got that? Secret-ballot elections are "divisive" -- whereas a confrontational, sign-this-card-right-now system presumably would not be. Miller also writes that "Every American deserves the right to freely decide whether to form or join a union." Yet a system in which union organizers can buttonhole co-workers in the parking lot seems considerably less free than one in which the decision whether to form a union is made in a voting booth.

 

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