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In this issue:

News and Analysis

The Good, the Bad and the Ugly


What’s up with EFCA? Anybody’s guess. – As Congress returned from its August recess, it appeared that passage of the Employee Free Choice Act was on the back burner as the lawmakers focused on health care overhaul legislation, an energy bill and financial regulatory reform. Both Senate Majority Leader Harry Reid (D-Nev.) and Sen. Tom Harkin (D-Ia.), who is leading the charge for labor law reform legislation, claim that passage of the EFCA remains a top priority, but concede it may be next year.

Meanwhile, President Obama and his cabinet strongly endorsed the EFCA at the AFL-CIO convention in September. Obama pledged to continue the fight for passage of the EFCA, and Secretary of Labor Hilda Solis told the convention that “labor is not the problem in this country, labor is the solution,” and said that the Obama Administration would fight for the EFCA because it would give workers a say in the workplace . . . adding that “it’s about fairness and balance.” Meanwhile, Sen. Arlen Specter (D-Pa.) announced to the convention delegates that a group of senators has “pounded out” a compromise on the bill that does not contain card-check recognition, but does include quick certification of elections, tough penalties for employers who break the law, and binding arbitration.

The signals from organized labor have been mixed. Outgoing AFL-CIO president John Sweeney has said that while the EFCA must contain a fair and just process for workers to express themselves regarding whether they want a union, it does “not necessarily have to be card check” authorization. However, Sweeney’s successor, Richard Trumka, has made it clear that the AFL-CIO is “still on card check.” (More on this fall’s AFL-CIO convention appears below.) Likewise, James Hoffa, General President of the International Brotherhood of Teamsters and a member of the Leadership Council of Change to Win, has said he will not compromise on the card check provision.

Large unions have reaffirmed their support for the passage of the EFCA, promising to raise millions of dollars for a fund to run advertisements to dispel the “lies” being told about the legislation. The American Federation of State, County and Municipal Employees has pledged $500,000 for the fund, and United Steelworkers President Leo Gerard said he would ask his board to pledge $510,000. Convention delegates also made pro-EFCA telephone calls and sent text messages to their representatives in Congress.

It appears that the EFCA will pass next year, but what it will look like remains to be seen.

Constangy to argue 2-member Board case at Supreme Court. – Both the National Labor Relations Board and Constangy have now filed their briefs urging the U.S. Supreme Court to consider whether the NLRB has the authority to issue two-member rulings. This topic has been covered in previous Executive Labor Summaries.

The NLRB recently filed two briefs with the high Court asking it to uphold the authority of the Board to issue two-member rulings. The first brief responds to a certiorari petition filed by an employer asking the court to overrule New Process Steel, LP v. NLRB, a decision from the U.S. Court of Appeals for the Seventh Circuit, which upheld the authority of the two-member board. The second brief is a petition for certiorari requesting the Court to overturn Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, in which the U.S. Court of Appeals for the District of Columbia Circuit rejected the legality of two-member rulings. Constangy attorneys Cliff Nelson and Chuck Roberts represented Laurel Baye. The decisions in New Process Steel and Laurel Baye were issued on the same day, but the Board has asked the Court to resolve New Process Steel first.

In their brief filed on behalf of Laurel Baye on October 2, Nelson and Roberts did not oppose review of the Laurel Baye decision but disagreed with the Board’s suggestion that New Process Steel should be decided first. Rather, they suggested that New Process Steel and Laurel Baye be consolidated so that Laurel Baye could “participate fully as a party in interest.”

Thus far, four cases (two involving Constangy) have been decided in federal appeals courts regarding whether a two-member Board has authority to issue decisions and orders. Three of the four cases have found that the Board does have such authority; Laurel Baye is the only decision to the contrary. Petitions for certiorari have been filed in all four cases. Until the Senate acts to confirm President Obama’s three July nominees, the two-member Board will continue to add to the 500 rulings they have issued during the past 21 months.

Handbook rule limiting media releases unlawful. – An administrative law judge has nixed an employee handbook at Trump Marina Hotel and Casino that expressly prohibits employees from releasing statements to the news media without prior authorization and also limits the individuals who are authorized to speak with the media. A leading and open union supporter had filed a charge against the casino saying that he was discriminated against, and an ALJ had found in his favor. After the employee was quoted in a union publication as saying that the ALJ had gotten “it exactly right,” the employee was called into his supervisor’s office and reminded of the casino rules against unauthorized media contact. It was implied that he should not violate these rules again or he would be disciplined. The United Auto Workers brought a charge, alleging that the casino violated Section 8(a)(1) of the NLRA by maintaining and enforcing the handbook rules prohibiting employee communication with the media, and the ALJ agreed with the union. As for Trump Marina’s contention that its rules were justified by business considerations, the ALJ found that the rules were overbroad and also found that questioning the employee about his possible rules violation was an unlawful effort to inhibit the continuation of protected concerted activity. He cited the Board’s 2008 decision in Crowne Plaza Hotel, in which the Board found the company’s rule prohibiting employees from talking to the press was unlawfully broad and violated the NLRA.


More on the AFL-CIO convention. – In what is viewed as an historic election, AFL-CIO convention delegates elected a new leadership team that includes two women at top positions. As expected, AFL-CIO Secretary-Treasurer Richard Trumka was elected to lead the federation. Elizabeth Shuler, the 39-year-old executive assistant to the president of the International Brotherhood of Electrical Workers, was elected secretary-treasurer, and Arlene Holt Baker, who is African-American, was re-elected as executive vice president. In his acceptance speech, Trumka contended that those Americans in the middle class today are “living in chaos,” losing health care, pensions, and their jobs. Although labor did not get the country into “this mess,” he said, “we are the people who are going to lead America out of it.” In reaching out to young workers, Trumka noted that they often are trapped in the world of the contingent economy, working as temporaries, contractors, and on-call labor, with low wages, no health care, no job security, and no pensions. Trumka said, “We have to change our approach to organizing and representation to better meet their needs,” and vowed to create a “strike force of 1,000 professional organizers whose only goal is to see that every worker who wants a union contract gets a union contract.”

HERE goes there. – The HERE faction of UNITE HERE has now returned to the AFL-CIO from the Change to Win movement it helped form in 2005. UNITE HERE President John Wilhelm announced that his union’s members belong in the “house of labor.” With the pullout of the United Brotherhood of Carpenters in the fall of 2008, Change to Win now is down to four affiliates – the Service Employees International Union, the United Food and Commercial Workers’ union, the Laborers International Union of North America, and the Teamsters. Delegates at the AFL-CIO convention approved a resolution urging the carpenters’ union – who, despite pulling out of Change to Win, never reaffiliated with the AFL-CIO – to re-affiliate or face the prospect of a new competing AFL-CIO union for carpentry workers. The president of the carpenters’ union called the resolution “a solution in search of a problem” and vowed to maintain focus on organizing efforts rather than the bureaucratic processes of the AFL-CIO. Despite all the rhetoric about unity in the labor movement, it appears a lot of acrimony remains.

Have you hugged your nurse today? – The stage is now set for the formation of a new 150,000-member super union for registered nurses at a founding convention in December. The new union, which will be called National Nurses United, combines the membership of the California Nurses Association, the United American Nurses and the Massachusetts Nurses Association. Deborah Burger, co-president of California Nurses Association/National Nurses Organizing Committee, has proclaimed, “This is a truly historic moment and I hope it sends chills down the backs of those employers who would want to keep us down.”

California leads the way – for better or worse. – According to a study recently released by the Institute for Research on Labor and Employment, unionization in California is increasing at a faster rate than for the country as a whole. For the 12 months ending June 2009, 18.3 percent of the workforce in California was unionized, up from 16.1 percent in the 12-month period ending June 2008. Meanwhile, the overall rate for the United States during the same years increased only slightly – from 12.1 percent to 12.4 percent. Nationwide, 37 percent of public-sector employees are represented by unions, versus only 7.5 percent of private-sector employees.

“Hey, kids – let’s rap! Unions are groovy!” – Newly elected AFL-CIO Secretary-Treasurer Liz Shuler recently told an audience of 18- to 34-year-olds that they “are the guinea pigs of the so-called ‘new normal’ economy, in which education, even when you get it, does not guarantee you a foothold . . . hard work does not mean you feed your family, and everything your parents expected from an employer such as job security, health care security and retirement security, sounds like a fantasy to you.” Calling herself the equivalent of a “teenager” in the labor movement at age 39, Shuler said it is her personal mission “to make sure the labor movement makes a difference in the lives . . . of young workers and for young activists looking to build the kind of country you want to live in.”

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit

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