The ChamberPost

Card Check Opponents: Be Leery of the Lame-Duck

by Ted Phlegar

To some, the prospects for passage of the misnamed Employee Free Choice Act are feeble, at best. When asked to continue to stand against the bill, several in Congress have responded that "Card Check is dead." Is it? Not according to President Obama, Vice President Biden, Senator Harkin, AFL-CIO President Richard Trumka and the rest of the union movement.

Yesterday, the President again vowed to pass Card Check. Speaking to the presidents and officers of more than 50 major unions, he promised, “We're going to keep on fighting to pass the Employee Free Choice Act...Now, I'm not telling anybody anything that you don't know, but getting EFCA through the Senate is going to be tough. It's always been tough, and it'll continue to be tough. We'll keep on pushing...I'm here to tell you we are not giving up and we are not giving in.”

The Hill has reported on the tentative plans for a lame-duck session beginning 15 Nov for a single week, then resuming 29 Nov. As the Hill notes: "Congress could have to consider appropriations bills after the election, as well as what to do with expiring Bush-era tax breaks."

Lame-duck sessions of Congress should be reserved for routine, unfinished business or governmental emergencies. Card Check is neither, but a lame-duck session is a ripe opportunity for friends of organized labor to push their agenda by attaching elements of Card Check to any piece of legislation that looks like it will pass. Certainly, the idea has not escaped them. Richard Trumka recently said, "The Employee Free Choice Act? We’re still working on it. We’ll ultimately get that done. I believe that with all my heart."

Legislators should not use a post-election session to ram through an agenda the public has rejected, but they might try to anyway. So, the business community and those that support America’s job creators must remain vigilant, especially in a lame-duck session.

EFCA - A Jobs Fail

by Brad Peck

Earlier today the President spoke to the AFL-CIO where he said that: "we are going to keep on fighting to pass the Employee Free Choice Act." Glenn Spencer had this to say:

We welcome the President's call to rebuild our economy, but taking away the private ballot and imposing government-dictated union contracts on employers won't help. Misguided bills like Card Check, overbearing regulations from the Department of Labor, and a slanted NLRB will only discourage America’s job creators from putting people back to work.

Keith Smith at NAM has more on the speech:

[The] President quickly followed that statement up affirming the Administration’s plans to use federal regulatory agencies to implement labor’s agenda. The President said officials have already made numerous policies changes through pro-union executive orders and appointments at both the National Mediation Board and the National Labor Relations Board (NLRB)...He said that the fight for EFCA in the Senate will be tough but “Our work doesn’t stop there. There is a reason why we nominated people the National Mediation Board.” He said “we’re going to make sure that the National Labor Relations Board is restored…”

The President is conceding what we (employers) have consistently warned against: In failing to push through Congress the policies demanded by labor like card check legislation, he is instead using the Executive Branch and regulatory agencies to achieve the same policy end. The outcome will be a system that increases labor-management conflict, undermines the dynamic labor marketplace, and adds huge new costs to U.S. businesses struggling to create jobs and stay competitive in the global economy.

Taking Card Check’s Pulse Three Years After Vote

by Glenn Spencer

Tomorrow marks three years since the Card Check bill was defeated in the U.S. Senate, falling nine votes short of the 60 needed to overcome a filibuster. Though the bill has yet to come up for debate during this Congress, employers would be well advised to remain focused on this lingering threat.

In recent days, Senate HELP Committee Chair Sen. Tom Harkin (D-IA) has ratcheted up the rhetoric on Card Check, hinting yesterday that the bill could come up in a “lame duck” session of Congress late in 2010. At a United Auto Workers rally days earlier, Sen. Harkin declared:

“Right now, there are a lot of naysayers here in D.C. who are counting out the Employee Free Choice Act. I've got a simple message for those people: We are going to keep fighting for EFCA -- for as long as it takes.”

One can make their own judgment about whether these statements are a true shot across the bow or mere political posturing. But organized labor has real motives to press forward with a vote on Card Check, even if defeat seems likely. As written, the bill would almost certainly garner more votes on the Senate floor than it did in 2007. This would allow unions to claim that Card Check continues to build momentum.

Furthermore, a mildly-watered down bill or various segments of the legislation taken alone may come dangerously close to passing. With America’s job creators under assault from all sides, Card Check, and any iterations thereof, continue to pose a grave threat.

Meanwhile, the union agenda is moving full speed ahead in the Executive branch. The National Labor Relations Board is exploring the prospect of e-voting, or “Cyber” Card Check for unions. The Department of Labor is cracking down on unpaid internships and the use of independent contractors. The administration is contemplating issuing the “high road” executive order on federal contracting that would rig the procurement process in favor of unionized firms. The bottom line is that any complacency amongst job creators about organized labor’s anti-growth agenda is seriously misplaced.

Open Ear on Card Check Doesn’t Cut it for Labor in Florida

by Glenn Spencer

Despite his vow to keep an open ear on the job-killing Card Check bill, Florida U.S. Senate candidate Gov. Charlie Crist (I) lost out on the Florida AFL-CIO’s endorsement to Democrat Kendrick Meek over the weekend.  In a speech before the Florida AFL-CIO just days before, Crist promised to meet with union officials to discuss his stance on the bill, stating according to the Florida Times-Union:

Everybody should have the right to have an opportunity to be able to organize. How, and the direct means by which, we do that is something we need to dialogue about, candidly. I want to make sure we do it the right way. I am here.

Apparently that didn’t cut it for organized labor, which is hitting the campaign trail to pin U.S. Senate candidates on their positions on Card Check, often on camera.  One thing is for sure, with labor going all out in key Senate races in states like Arkansas, Pennsylvania, and Florida, the unions seem to be sending the message that their endorsements and money will only follow full-throated endorsements of Card Check.

Meanwhile, labor is also pushing for an election year vote on the Card Check bill, most likely in the form of attaching it to other legislation.  The labor movement wants to get Senators on record with a vote and attempt to show long term momentum by gaining more Senate votes than the last time the bill came up in 2007.  The business community must be vigilant to make sure that any such vote fails by as wide a margin as possible to put this issue away for good.

EFCA - Stay Alert

by Nate Jepson

Mike Eastman recorded this update for our Friends of the U.S. Chamber network.  Sign up for alerts here.

NLRB - The National Union Encouragement Board

by Brad Peck

So I am having a beer last night and reading the NLRB's Election Report Six Months Summary (that's right, we know how to party in D.C.) where I saw that from October 2009 through March 2010 the AFL-CIO again won a clear majority (61.5%) of "secret-ballot voting by employees in NLRB-conducted representation elections" continuing to bust the EFCA myth that "Unions Can’t Organizing Under Secret Ballots." Nothing new there, but going back to the NLRB twitter feed, I did notice something interesting. These recent press releases:

May 6th - Press Release: Pennsylvania nurses vote for union in NLRB election http://tinyurl.com/25e9mm6

Apr 28th - Press release: Ballot count finds Houston nurses favor union representation http://tinyurl.com/2e284dl

Now I am hardly an NLRB junkie, but I couldn't recall seeing them issue press releases regarding elections before. To the archives!

So the NLRB has issued 24 press releases this year -- and yes these were the first two to report the results of an election where workers were choosing to be represented or not. To be fair, there was another release "NLRB releases vote count in California Kaiser election" where the NLRB reported on a vote count in which workers voted to leave the SEIU for NUHW -- curiously that one didn't make it onto Twitter.

Going back further none of the forty 2009 releases reported on the results of representation elections, there were also zero such releases in 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, or in 1996 where the archives stop.

Unions and some Board folks have in the past cherry picked a few words out of the 1935 policy declaration in the Wagner Act that it is the policy of the US to "encourage" collective bargaining – as if the 1947 Taft-Hartley amendments were never enacted. This may be the line of thought justifying the new issuance of releases trumpeting employees choosing a union, while not issuing similar releases heralding the rejection of a union -- but the NLRB should be proud whenever a fair election is conducted, whatever the results.

With fair elections resulting in employees choosing representation becoming the norm, one wonders whether those who want Craig Becker and the other members in the majority on the board to change the rules for elections understand that these results undermine their position.

// Update: Great background on the NLRB's PR change at Shopfloor here and here.

EFCA Comes Tumbling Down

by Brad Peck

Today the AFL-CIO removed the large banner supporting EFCA which had covered the corner of the building facing the White House for the past year or so. Let's just take in the moment:

A second banner just around the corner was taken down as well.  But now the bad news. BNA reports today that the AFL-CIO is "not backing away" from EFCA. So removing the issue from public view might not indicate surrender, but merely that a decision has been made by the AFL-CIO to bypass a public debate on card check in Congress to try and slip it through the back door.

For today though, let's stay positive:

Ineffective Solutions - The Real Status Quo

by Brad Peck

I sometimes get emails forwarded to me originating from the Big Labor front group American Rights at Work (ARAW). The latest one opens with:

Want to know what's next on the U.S. Chamber's agenda? Spending $50 million on political races to "play a major role in this year's midterm elections on a scale to rival the nation's two main political parties!" Read all about it, then take a stand by signing our Not My Chamber pledge TODAY!

Is it the money that’s upsetting them?  Surely not; the AFL-CIO alone spent more than $50 million in the 2008 election cycle and has announced they will be spending even more this year. And SEIU president Andy Stern has openly boasted that "We spent a fortune to elect Barack Obama — $60.7 million to be exact." So it can’t be the money. Then I thought back to a Tom Friedman column from last week, where he proposed developing a "radical center" to break "the oligopoly of our two-party system." Bingo.

You see, Big Labor has hitched their wagons to two horses, the Democratic Party and government. Any threat to the status-quo in which they have invested (the two-party oligopoly) is a threat to their investment.

The email continues with three acts by the Chamber to which ARAW takes offense, let's break them down.

Politics v. Jobs

by Brad Peck

The Hill today asks: "What will be the political fallout from President Barack Obama's decision to use recess appointments to place Craig Becker and Mark Pearce on the National Labor Relations Board?"

We are more worried about the economic fallout of Becker's pick which makes no sense outside the realm of pure political payback, which Becker's appointment clearly is, as Becker supporter Dean Baker from the EPI note:

President Obama has given something important to a key constituency that played an enormous role in getting him elected.

Of course, it isn't the first time, Rob Bluey explains:

Prior to his appointment, Becker served as associate general counsel to the Service Employees International Union. The union, which spent an estimated $66 million in 2008 for Obama’s election, has been rewarded dearly for its support. Becker is the third SEIU leader tapped for a post by Obama. SEIU President Andy Stern and Secretary-Treasurer Anna Burger are among the most frequent visitors to the White House. Public records released by the Obama Administration show that Stern made 38 trips to the White House and Burger made 43 visits through Dec. 31, 2009...Stern was picked in February to serve on Obama’s debt commission. Burger was tapped for Obama’s Economic Recovery Advisory Board in 2009. And now Becker, despite Senate opposition, has secured a coveted appointment to represent the Big Labor’s interests at the NLRB.

As for what comes next, history + the words of Becker's supporters = yet more uncertainty for business.

Here is a different approach.

What to Expect from the NLRB

by Mike Eastman

Over the weekend, President Obama gave recess appointments to Craig Becker and Mark Pearce to serve as Members of the National Labor Relations Board (NLRB). They will join Current Democratic Chairman Wilma Liebman and Republican Member Peter Schaumber. We’ve written before about the Chamber’s opposition to Mr. Becker’s nomination, but now are receiving many inquiries about what the appointments mean to the business community. Now that the NLRB has an undisputed quorum and Democratic majority, what will be the  agenda?

Last fall, anticipating such an outcome, the Chamber published a report, The National Labor Relations Board in the Obama Administration: What Changes to Expect, in which we summarize more than 50 NLRB decisions that we believe are most likely to be reversed by the current NLRB. While some of these cases are high profile, such as Dana/Metaldyne that effectively gives employees notice before a union and an employer  can circumvent the law’s secret ballot process for union recognition, others are much less well know. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations