Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The new and improved Connecticut Bar Association Annual Meeting went off without a hitch on Monday, chock full of information about labor & employment law.  Besides my seminar on the intersection of social media and employment law, the CBA held a forum in the afternoon on the "Practice of Labor & Employment Law in the Current Economy: Practitioners' Perspectives".

There were numerous people on the panel including two from large national employment law boutiques, two who commonly represent employees, one who represents unions, and two government officials from the NLRB and the Connecticut Department of Labor.

The discussion ranged from the challenges presented by new trends in billing and rate structures; marketing and client development; the impact on insurance in employment cases and the public entity as your client or adversary.

Among the trends that have spotted is a somewhat surprising one: More representation cases are being filed at the NLRB, particularly in the Connecticut region. Indeed, the head of the NLRB's Regional Office described the current environment as "boom times" for the agency.

He indicated that 3 new attorneys were hired and that they anticipated further changes and work as a result of a new General Counsel likely to start late this year.  After all, the General Counsel will set the tone by deciding what cases he or she wants to bring before the board. 

Why the increase? Part of it stems from the fact that because people cannot get new jobs quickly, they seem to want to try to have more of an impact in their current jobs.  In addition, the perception that the NLRB was a place to be avoided has shifted dramatically and the agency is now viewed as a place where complaints will be heard and perhaps looked at with a favorable eye. 

Even if Congress never passes the Employee Fair Choice Act (EFCA) bill, the NLRB is still likely to make changes to its internal procedures.  One example is a new poster that will be required effective June 21, 2010 for all federal contractors. It is quite possible that a version like this will be rolled out to all private employers by the start of 2011.  

Nevertheless, this represents a cautionary tale for employers in Connecticut. Although just seven percent of employees at private companies are unionized, the uptick in cases at the NLRB means that the labor union concept is far from dead. Indeed, don't be surprised if the next few years show a bit of a reversal of fortunes for unions here.

I'll talk about some of the other trends in an upcoming post or two. 

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The New York Times this morning is reporting that a group of moderate Democratic Senators have been discussing a bill that would eliminate the "card check" provision from the Employee Free Choice Act legislation but would keep other aspects such as a speedy election.

According to the article:

Though some details remain to be worked out, under the expected revisions, union elections would have to be held within five or 10 days after 30 percent of workers signed cards favoring having a union. Currently, the campaigns often run two months.

To further address labor’s concerns that the election process is tilted in favor of employers, key senators are considering several measures. One would require employers to give union organizers access to company property. Another would bar employers from requiring workers to attend anti-union sessions that labor supporters deride as “captive audience meetings.”

Not surprisingly, the National Association of Manufacturers has derided this "compromise" because it still contains a binding arbitration provision.

Meanwhile, binding arbitration — a process that denies both employers and employees a voice — remains in the bill. Any labor bill that contains binding arbitration is unacceptable to employers, who need to actually run their companies in order to create products and pay employees.

This bill, if passed, would affect employers across the country, including those in Connecticut. 

This remains a fluid situation but with the votes as close as they are in the Senate, expect to hear more about it in the weeks to come. 

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The conventional wisdom lately is that the Employee Free Choice Act (EFCA or "Card Check" to others) will not pass in its current form.  (You can find my prior coverage of the EFCA here.) 

Over the last few days, however, various "compromises" have been floated. (H/T Shopfloor.) Of course, the very word "compromise" suggests some reasonable attempt to strike a middle ground, which is a debate in and of itself.

A Washington Post editorial over the weekend suggested that it is employer "intransigence" that is making such a compromise difficult.

WE HAVE SAID before that the Employee Free Choice Act is a flawed solution to a real problem: unfair barriers in the way of union organizing. We have been critical of the labor movement for its reluctance to consider alternatives that could level the playing field between labor and management. So we have, we hope, some standing to criticize a leading management group for its absolutist stance against not only the Employee Free Choice Act as written but also against compromise proposals. Instead of engaging in a good-faith effort to fix the problem, the group, the Coalition for a Democratic Workforce, chooses to deny that there is a problem.

Others, however, have a different view. Former NLRB Member Peter Kirasnow said the idea was "nonsense", going on to say that the idea that unions are in trouble because of the law was not supported by the evidence.

[T]he idea that the EFCA amendments presently being floated constitute a "compromise" is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The "compromise" is merely a recognition among Democrats that they can't muster the needed support for EFCA from within even their own ranks.

Recent government data shows that unions are far from the underdogs in all elections (winning 66.8 percent of all elections in 2008 -- the highest rate in over 50 years).  In fact, in 2008, the percentage of employees in unions went up. 

The White House has shown no desire to push this bill -- in any form -- right now with barely a mention of it on its website.  Whether some sort of bill is ultimately crafted that can garner enough votes for passage remains the question that everyone is still waiting on for an answer.

Employers should continue to track developments in this area but I wouldn't be expecting a bill anytime in the immediate future.

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Over the last few weeks or so, plenty of commentators have been hyperventilating over the Employee Free Choice Act -- a bill pending in Congress. I've resisted the urge to do so in the belief that we were still a long way from passage and that the concepts in the bill were going to go through a lot more refining. 

 

This belief was also grounded in the fact that the White House had barely bothered to mention it on the website. Even today, type in "Employee Free Choice Act" or "EFCA" to the White House site and you get virtually no entries, other than a passing reference in a videotaped speech to the AFL-CIO. 

So, for anyone that's been tracking votes, it came as little surprise to hear yesterday that Senator Arlen Specter of Pennsylvania signaled his opposition to the bill in its current form. 

In doing so, he proposed a number of alternatives for consideration to reform the National Labor Relations Act.  Among them:

• Speeding up elections;
• Broadening the scope of what an "unfair labor practice" is;
• Increasing the penalties for violations of labor laws.

The EFCA Report has a full list of the alternatives and you can read the Senator's prepared remarks on his website here.   You can also view his entire speech in the clip above.

By issuing a proposal (not exactly an "alternative" per se to the EFCA, but additional reforms), Senator Specter has indicated his willingness to pass SOME reforms of the nation's labor laws.  But it is now unlikely that the EFCA will pass in its current form.

For employers, the best path may simply be to ignore the hyperbole and continue to focus on ways to improve your relationship with your workforce.  A responsive management that listens to its workforce and treats its employees fairly has always been among the best tools that an employer to keep its workforce from organizing, if that's its desire.  

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After months of nonstop speculation, the Employee Free Choice Act bill, which was introduced last year in Congress, is expected to be introduced later today by Rep. George Miller of California. 

But its passage this year is far from certain.  As the EFCA Report blog and others have stated, several senators, including Sen. Arlen Specter's (R-PA), Sen. Lincoln (D-AR) and Sen. Landrieu (D-LA) are in the publicly undecided camp, leaving the filibuster in the Senate firmly in play for now. 

For employers, one thing is certain: You can use this time when the bill is being debated to hone up on the EFCA and prepare your workplace, if necessary, for its possible passage. Even if the EFCA is not passed this year, it is likely to come up for debate again and again. 

Frank Roche, of the KnowHR blog, has an interesting take on this as well with the publicity videos that have been rolling out both in favor of and against the passage of the bill as well. As Frank preaches, there's no time like the present to get going on educating employees about the EFCA:

When is the best time to plant a tree? 10 years ago. And when is the best time to start communicating about EFCA? 10 months ago. If you didn’t already start, there’s no time like the present to get communicating about EFCA and its implications for your organization.

Update: 8:30 a.m.  Mike Allen's Politico column has some other interesting nuggets about the EFCA's introduction today:

• Intensifying its campaign to defeat the measure, the U.S. Chamber of Commerce launches print and radio ads today in Pennsylvania, Virginia, Louisiana and Nebraska (all with key senators.) This coincides with nearly 200 small business leaders and Chamber members descending on the Hill to lobby against the measure. Afterward, some will tape interviews that will later be used in TV spots.
• LINGO: The measure would allow unions to organize based on signed cards instead of secret ballots. Business calls it “card check.” Democrats, who hate the term “card check” as much as “the Democrat Party,” call it the “Employee Free Choice Act” or “EFCA.”

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Another snow day.

The winter continues its white deliverance. But in the meantime, the employment law world never stops.  Here are some items to keep you up to speed on what's been happenning locally and nationally.

• The latest projections are that the Employee Free Choice Act will be brought up for debate in Congress sometime this summer. In the meantime, there's lots of analysis that is coming out in support of or against the bill  -- much of it filled with empty rhetoric. One of the more cogent ones, is a post by respected economist and federal appellate judge Richard Posner who has his doubts as to whether the bill will actually promote unionization.  (H/T California Labor & Employment Defense Blog).
• The Lilly Ledbetter Fair Pay Act is now due for signature by President Obama on January 29th.  
• It's Girl Scout Cookie season and, as the HR Capitalist now reminds us, this brings into focus non-solicitation policies that many companies have.  "I hate saying no to the sale of girl scout cookies, school sales, etc. I'm usually a "no-harm, no-foul" type of person, but every time I see one of these cases, it always perks up my sensitivity to solicitation in the workplace."  
• Word in this morning is that the E-Verify rules will now be delayed further to May 20th and will allow the Obama administration time to review the proposed rules.  
• Above the Law reports that the Government's job website was actually hacked over the weekend.  As if workers didn't have enough to worry about...
• Rush Nigut, who runs a terrific blog in Iowa, has a post about using Twitter in the workplace. If you don't know what Twitter is, now's the time to start.  
• John Phillips has a good article about why employees don't go to human resources. For HR professionals, it's worth reviewing because if you can get to the root of the problem, you have a better chance of solving it before it blows up into something larger.

And if the snow here gets you in the mood for a little Robert Frost, here's a link to his classic poem: Stopping by Woods on a Snowy Evening. 

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With the change in the administration, the official White House website is now up. It's still a little sparse now but has such nifty features as an official White House blog. 

Of more relevance to employers and businesses, however, is the detailed list of the new adminstration's agenda.  While much of it is not terribly "new" (portions were up during the campaign and transition), it still feels more "official now".

You can view the civil rights agenda here, with other areas affecting employers such as disabilities, and paid sick leave and equal pay also detailed.

But what is missing as of early Tuesday afternoon is any reference to the Employee Free Choice Act (EFCA), a sweeping bill that is designed by its proponents to strengthen unions.

Under the Transition site (Change.gov), it was plainly listed under the Economy agenda.  A look at the same page in the official White House site contains a discussion of the Recovery and Reinvestment Plan with no reference to EFCA. 

Even stranger, when you type "EFCA" into the search term, you get no results.  And a search for "Employee Free Choice Act" shows no direct hits either. (Shortly after drafting this post and running the search, the White House site has temporarily gone offline -- presumably due to high traffic). 

It's very early into this new term and perhaps this was merely an oversight, but for those looking for a sign -- any sign -- that the new President will not make EFCA a top priority, perhaps -- just perhaps -- this might be it.

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The Wall St. Journal is reporting this morning that the Employee Free Choice Act bill is not likely to be among the pieces of legislation to be considered in the new administration's first 100 days:

Unions likely won't see action soon on legislation that would make it easier to organize workers, but Democrats are moving to back a pair of less-controversial bills that would facilitate filing discrimination suits against employers.

Labor had hoped the Obama administration would take up the Employee Free Choice Act within its first 100 days. The bill would let unions register members by collecting signatures on cards rather than through elections. But enactment now appears doubtful.

The bill is opposed by business. Mark McKinnon, a spokesman for the Workforce Fairness Institute, a business-backed group that opposes the measure, said support for it is weakening and the business lobby expects to have enough votes to block it with a filibuster, as it did in 2007.

In light of the expected opposition to EFCA, as I reported yesterday, it appears unions and other groups are advocating for the "low-hanging fruit", and seeking passage of the Paycheck Fairness Act and Lilly Ledbetter bill quickly.  The new bill (which combines both aspects of the two prior bills into one) is expected to be considered by the House as early as Thursday.

I've discussed the pros and cons of the EFCA in various posts before. Regardless of the immediate prospects for passage of the EFCA, now is certainly the time for employers to educate themselves about it.  The issue is most assuredly not going away. 

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There's been some speculation this week that with the Republicans picking up an important 41st seat in the Senate in 2009 (thus having enough votes to filibuster theorhetically), the prospects for passage of the Employee Free Choice Act have gone down, at least in the short term.  I'd add to that notion that proponents will have a tough time passing a bill in this economic climate that its opponents will say will hurt U.S. jobs. 

Two other considerations: Today's unemployment numbers -- while not that unexpected if you've been reading the headlines -- still sound and look bad.  In additiion, there has been negative publicity for unions arising out of the U.S. car makers rescue plan (though an interesting counter to this is suggested by this article.) 

But employers are fooling themselves if they think that this bill (or some form of it) will disappear. It may end up being delayed, but it is certainly not dead. Indeed, it may be modified significantly, to make it more palatable to the Senate.

What this means for employers is that they may have some more time to prepare for EFCA's passage.  And employers who have not traditionally been targets of union organizing campaigns may find themselves unprepared.  Here are a few ideas to think about:

1.  Get HR Involved

• Bad economic times and uncertainty in the workplaces create situations that unions may seek to take advantage of.  Laying off staff -- particularly your front-line human resources employees -- may only make matters worse.  Thus, educating your HR staff now about the bill should be among the top priorities.  
• In doing so, review your current policies and practices to figure out where your vulnerabilities lay -- and your strengths as well.  Perhaps you have a weak anti-solicitiation provision or a policy that allow for unfettered e-mail distributions.  And perhaps, your company would welcome a union.  Either way, take a broad look at your situation to determine whether your company is positioned to handle a union organizing campaign. 

2. Emphasize Compliance and Fairness

• Make sure your HR staff AND your supervisors understand the importance of complying fully with applicable laws by treating employees fairly and in a non-discriminatory fashion.  Having prompt and effective communication is crucial in this process. In the absence of clear communications, employees will naturally insert rumor and speculation into it.   And don't forget to educate your supervisors about the do's and don'ts regarding unions.    Most importantly, make sure you aren't creating legal issues where they shouldn't exist; get outside counsel now to advise you on these types of issues and avoid potential pitfalls.

3. Develop a Strategy

• Once you've taken stock of your policies and procedures and worked with your HR staff to emphasize compliance, consider developing a business plan as to how you will respond to potential organizing campaign by the union.  Educating your employees about EFCA and the potential card check provision should obviously be part of that strategy.  And develop and use an open-door policy that gives employees a place to go to answer questions they might have (or even an internal webpage that might address FAQs). 
• Identify the people within the company who will be responsible for developing a quick-action response, if needed. Often times, employers learn about union organizing campaigns very late in the process.  Thus, develop a plan of action beforehand and work with outside counsel to be ready to go on a moment's notice one you learn of a campaign.

There are plenty of other sources on the topic this week, including the Labor and Employment Law Blog and EFCA Updates, (And for more on the provisions of EFCA itself, Walter Olson has added his thoughts).  Obviously, there is much more to this topic than can be summarized briefly in a post. But for employes who don't have unions, the time is now to start thinking about the effect that the bill's passage may have on their businesses. 

(H/T for some links, Ohio Employer's Law Blog)

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One of the bills in Congress this year that is expected to be heavily debated is the Employee Free Choice Act. 

What is it? Workplace Horizons has this take on it: "The Employee Free Choice Act (H.R. 800; S. 1041) would amend the National Labor Relations Act to make it significantly easier for unions to organize employees, to require binding arbitration of first contracts after 120 days, and to stiffen penalties for certain unfair labor practices."

The AFL-CIO has an alternative take on it: "The Employee Free Choice Act (H.R. 800, S. 1041), supported by a bipartisan coalition in Congress, would level the playing field for workers and employers and help rebuild America’s middle class. It would restore workers’ freedom to choose a union by: Establishing stronger penalties for violation of employee rights when workers seek to form a union and during first-contract negotiations; Providing mediation and arbitration for first-contract disputes; Allowing employees to form unions by signing cards authorizing union representation."

Obviously, how you feel about the proposal depends on whether you think the current system of union elections is broken.

One Connecticut Congressman, Joe Courtney, spoke this morning with the My Left Nutmeg blog with his thoughts on it. During a very interesting and insightful interview with Ken Krayeske, he voiced his strong support for the bill.

The Employee Free Choice Act is critical to make sure people can organize without recourse. It was one of my first speeches on the House floor. ...

If you go back to NLRA [the National Labor Relations Act, passed in 1937], a card check was supposed to be the method towards getting union recognition. It was down the road that employers were given the option of requesting an election, moderated by the NLRB.

The law we voted on in the House would say that a union would be recognized with a majority of signature cards signed by members of the bargaining unit. If even a third, thirty-three percent,  The law changed so that employers don't have the opportunity to mandate an election. Otherwise, these hired guns, consultants come in where there is strong support for union with cards, and they end up turning the election in to a long drawn out process that defeats the election.

Rep. Courtney -- who represents District 2, which includes many towns in Eastern Connecticut including where the casinos are located -- had particularly strong words about the Foxwoods election.  As readers of this blog will recall, there has also been a heated battle going on with a union election at Foxwoods, including a multi-day hearing that we've covered here in many posts. 

The Foxwoods case is classic as to why this needs to pass. The UAW won that vote 60-40, with a healthy margin.

Then management is coming in there with a big hired gun [in front of the National Labor Relations Board].  They put on days of testimony about what the ballot said, "Do you support this union?"

Management was bringing in employees who claimed they couldn't read it, and said they had difficulties with the language.. The testimony was comical. The translators that management brought in were at the hearing. Inadvertently, someone would ask a question in English, and they would answer it before the translators could.

These were all card dealers, of course they understand English. But it is a textbook example of how they abuse the system to delay union victories. If you get unions to get the cards, we don't have to go through these hearings.

Rep. Courtney is a decent fellow and, by all accounts, is doing well representing a difficult district..  But is Rep. Courtney referring to the lawyers who defended Foxwoods as mere "hired guns" that ought to be criticized for defending their clients?

If that's the implication -- and its a bit unclear from the statement -- that seems particularly harsh and unnecessary.  Whatever one thinks about Foxwoods (and if you ask 100 people, you'll get 100 opinions), it's unfair to challenge the attorneys merely for representing their client.  Our system of justice demands that each party -- no matter how disliked -- be given a full and fair opportunity.  Foxwoods should be no exception.

Moreover, it's not like the Foxwoods' appeal on the language issue was frivolous.  Indeed here, even the Hearing Officer stated that he would've handled the election differently and translated the ballots at issue.  Given the high burden of proof necessary to overturn an election, it's probably not enough to carry the day but we'll have to wait a few more weeks until the decision on the election is issued.

In the meantime, Rep. Courtney is obviously willing to keep pushing the Employee Free Choice Act.  How far will that battle take him? We'll just have to wait to find out.  However, even he suggests some excitement ahead: "The Card Check Act, that is the battle to be watching."

(H/T My Left Nutmeg)

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