The nation’s most powerful employment attorneys for 2009, presented exclusively by HRE, tell you what they see on the horizon from the Obama administration, and what you need to do.

President Obama has nominated two of the three open seats at the National Labor Relations Board, including a lawyer with prolific writings urging changing the law to favor unions. Filling the open Democrat seats, the President announced his intention to nominate Craig Becker, a Chicago attorney who serves as Associate General Counsel to both the SEIU and the AFL-CIO, and Mark Pearce, a union-side attorney with the Buffalo firm of Creighton, Pearce, Johnsen & Giroux.

Mr. Becker has written extensively over the years and, in a 1993 law review article, proposed virtually eliminating the employer role in union representation elections, which he views as “anomalous.” He writes: “So long as the law construes employers and unions as equals in union elections, industrial democracy will remain as much a legal fiction as liberty of contract.” Further, Mr. Becker believes many changes could be made without Congress having to change the statute, including:

Denying employers any role in NLRB proceedings that determine which group of employees the union would represent (”appropriate unit”);

Removing the election itself from the workplace and barring employers from placing observers at the polls;

Barring employers from being able to challenge election results based on objectionable conduct by the union or participate in unfair labor practice cases involving such union conduct;

Establishing a “body of new campaign rules” for employers that would seek to prevent an employer from “exploit[ing] its authority as employer to augment the impact of its speech.”

By GEORGE S. MCGOVERN
The recent news that Pennsylvania Sen. Arlen Specter has become a member of the Democratic caucus has given new life to legislation that many thought had been put to rest for this Congress — the Employee Free Choice Act (EFCA).

Last year, I wrote on these pages that I was opposed to this bill because it would eliminate secret ballots in union organizing elections. However, the bill has an additional feature that isn’t often mentioned but that is just as troublesome — compulsory arbitration.

This feature would give the government the power to step into labor disputes where employers and labor leaders cannot reach an agreement and compel both sides to accept a contract. Compulsory arbitration is bound to trigger the law of unintended consequences.

Currently, labor law maintains a careful balance between the rights of businesses, unions and individual employees. While bargaining power differs depending on individual circumstances, the rights of the parties are well balanced. When a union and a business enter negotiations, current law requires that both sides bargain “in good faith.”

In a contract negotiation, each party typically perceives the other as too demanding. But no one loses their right to contract willingly or suffers being forced to agree to anything. Employees can strike if they feel that they have been dealt with unfairly, but it is a costly option. Employers are free to reject labor demands they find to be too difficult to accept, but running a business without experienced employees is itself difficult. Both sides have an incentive to press their demands, but they also have compelling reasons not to press their demands too far. EFCA would disrupt that balance by enabling government-appointed lawyers to decide what they believe is fair or reasonable.

A federally appointed arbitrator cannot be expected to understand the nuances specific to each business dispute, the competitive market position of the business, or the plethora of other factors unique to each case. Yet fundamental decisions on wages and benefit costs, rules for promotions, or even rules for exiting an unprofitable line of business could fall to federal arbitrators under EFCA.

Many labor contracts can run over 100 pages with their requirements of each party. Compulsory arbitration is, in one sense, government dictating to employees what they will win or lose in the deal, with no opportunity to approve the “agreement.” Why should employees pay union dues to get such a contract?

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.”

My party has well-deserved majorities in both houses of Congress, and I am thankful to have an exceptional president in Barack Obama. But while the Democratic majority in Washington confers the power to reward our loyal supporters, today’s problems require solutions that transcend party politics. Even when that means taking unpopular stands.

Mr. McGovern is a former senator from South Dakota and the 1972 Democratic presidential candidate.

Today, Arlen Specter, Sr. Senator from Pennsylvania, announced that he is changing from Republican to Democrat. Put simply, he is doing this because he could not win the Republican Primary but he would be heavily favored to win the general election.

In his statement today, Senator Specter did say that he would not be the automatic 60th vote and would maintain his independence on certain issues. As an example he used EFCA. In his statement Specter said he will not support EFCA, also known as card check, because it is against the fundamental principles of democracy.

However, Senator Specter did say that President Obama, Senate Majority Leader Harry Reed, and Governor Rendel all promised help and support to him during this election. The question is how will Senator Specter repay his new friends?

In his earlier statement on EFCA, Senator Specter said he would not support EFCA but wanted to see significant changes to the National Labor Relations Act. In the notes appended to his statement, the recommended changes were straight from the written EFCA legislation except that there would be a private ballot preceded by 14 day campaign period.

Stay tuned. As Mr. Dillon said “Times, they are a chang’n”.

According to a recent article in the Washington Post:

As key senators have announced that they are not planning to support the Employee Free Choice Act, labor leaders put on a brave face, saying they have every intention of finding the needed 60 votes and that it is premature to start talking about alternatives to the bill.

But in an interview today, Andy Stern, head of the influential Service Employees International Union, stepped gently away from that unified front, raising the prospect of reforms that would overhaul union elections without giving workers the option of organizing sans secret ballot elections……..

“The President has said he has a series of things — that we agree that he needs to get done — which are major for every man woman and child, like health care, like the budget, like financial regulation,” Stern said. “We respect that we have a job to do to line up enough votes without him. I don’t think there’s any question that he says there will be a vote, that this bill’s time has arrived and he will do whatever is in his power to bring this home. We just aren’t there yet.”

Then Stern signaled one last time that if card-check does prove to be unrealistic, he believes that unions must get behind some other substantive reform, instead of waiting until 2011 in hopes of a bigger Democratic majority after the next election. “We need to get something that’s significant done,” he said.

While this may be the last gasps of EFCA, the alternatives could be just as challenging. The most likely alternatives are probably close to what Senator Arlen Specter said he would support which were a shortened election time line, limiting captive employee meetings, limiting home visits, and increasing fines for unfair labor practices.

The key is to educate your management and workforce now. Proactively work to improve the working conditions and relationships between employees and management today. If addressed correctly, you won’t need to worry about EFCA, shortened election cycles, fines for unfair labor practices, or having to deal with a union.