Jottings By An Employer's Lawyer

Tuesday, March 24, 2009

Specter Won't Be the 60th Vote

As the only Republican Senator to have supported EFCA in the prior Congress, Arlen Specter of Pennsylvania has literally been on the hot seat over the bill since a straight partisan vote would have left it one vote short.

In a Senate floor speech this afternoon, Specter called it "a very emotional issue" which may be one of the very few understatements about this piece of legislation given the heated rhetoric that has been coming from all sides. Politico has Specter's full statement at Specter deals a blow to EFCA.

Although he gives the door a pretty hard slam, Specter leaves a slight opening somewhere down the line:

The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.

I am sure organized labor's condemnations will soon start to roll in, but over at the Nation, the headline in the story by Chris Hayes probably sums it up, Specter Stabs Unions in the Back.

Update: Here's a link to Senator Specter's posting about his speech, including a video of him talking, which also includes some proposed changes to the NLRA that he would support. Whether there will be any traction to these proposals remains to be seen. On Sunday, it was Six Principles, today Senator Specter offers Twelve revisions:

  1. Establishing a timetable: (a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union (b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension. (c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

  2. Adding unfair labor practices: (a) an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign; (b) an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances; (c) an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.

  3. Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired

  4. Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign

  5. Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service

  6. On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.

  7. Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith

  8. Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;

  9. Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.

  10. I the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.

  11. Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith

  12. Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.

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