Whatever Happened to the Employee Free Choice Act?

It's a little disheartening to think back to last year, when Labor -- and the Chamber of Commerce -- were convinced the Free Choice Act was going to pass.  Below is a link to an article I just published examining what an amended EFCA might look like:

http://www.law.com/jsp/pa/PubArticlePA.jsp?hubtype=TopStories&id=1202443831406

Only in Arkansas

While the editorial is right on, only at the Arkansas Times can they get away with quoting George Wallace -- and not in a good way:

http://www.arktimes.com/Articles/ArticleViewer.aspx?ArticleID=56b5dd6e-cfe0-4231-a5ea-4f3076311370

Saying that no one will "out-union" Blanche Lincoln doesn't quite have the same tone as the Wallace quote though.

Appoint Becker Now

In a previous post I urged confirmation of Craig Becker for chair of the National Labor Relations Board.  Alas, despite majority support in the Senate, the Republicans filibustered and would not permit a vote on this extremely qualified candidate.

The battle isn't over yet.  Under the peculiar rules of the Senate Obama can make a recess appointment when Congress is having a recess, as it is now.  Hell, 7 out of 8 Bush Jr. Board appointments were recess appointments.  Say what you like about Bush, he at least had the balls to stand by those who stood by him.

Obama can and should appoint Becker now -- he has until the end of the week to make the appointment.  By doing so he would be showing the labor movement that he supports our aims.  More importantly, Obama would be showing the do-nothing Congress that he has a spine and won't be pushed around and gridlocked to death.  Write your Congressman or call the Prez and tell him to do the right thing.

http://thehill.com/blogs/congress-blog/campaign/80949-no-deal
http://www.politico.com/news/stories/0210/33015.html
http://voices.washingtonpost.com/ezra-klein/2010/02/the_white_houses_troubled_rela.html

The Case of the Curious Arbitrator

Arbitration is an informal process, which means that arbitrators can, and do ask questions of witnesses sometimes.  But should they?  Today I had a case in which it annoyed me that the arbitrator was asking questions, and almost all of them helped the employer's case.

There are two schools of thought on this.  One is that arbitrators are there as judges, simply to hear the cases that the lawyers present.  The other is that arbitration is a type of truth finding process, so the arbitrator can, and should ask questions to discern the truth.

I believe for the most part that arbitrators should hear the cases presented to them and make decisions based on the cases the lawyers make.  Of course, is something is confusing, or needs to be clarified, I welcome questions by the arbitrator.  What I don't like is when an arbitrator helps the other side make their case, particularly in a discharge case.

Today, for example, I had a discharge case involving an employee who was accused of theft.  He had an explanation for what he did, and the explanation was not unreasonable.  The employer's lawyer finished cross examination, then rested.  Then the arbitrator jumped in.

The arbitrator was asking questions and stumped the grievant on a few of them.  The witness, perhaps feeling slightly intimidated by the arbitrator, struggled with his answers.  It didn't kill my case, but it sure didn't help.  The point though, was that no one asked the arbitrator for her help with the witness.

I don't know how the case is going to come out.  I do know, though, that an arbitrator that asks too many questions won't make it to the top of my list in the future.

Free Craig Becker!

For the first time in over thirty  years, a nominee to the National Labor Relations Board will have to defend himself and his academic writings before the Senate.  Craig Becker, one of Obamas's three nominees to the NLRB has had his nomination held up for months by John McCain.  Through procedural manuvers, the Senate sent Becker's nomination back to President Obama; Obama resubmitted his nomination and prompted a demand from McCain to hold hearings on the nominee.  On February 2d Becker will face the Senate HELP committee and the hostility of McCain and his allies.

Mr. Becker is a very talented and smart labor lawyer who represents the Service Employees Union and the AFL-CIO.  As is traditional, the sitting president selects three members for the NLRB, and two are selected from the opposing party.  Mr. Becker was nominated last year along with labor lawyer Mark Pearce, and Republican nominee Brian Hayes.  Rather than confirming the nominations, McCain has placed a hold on the nominees because he is opposed to Craig Becker.  Thus, the NLRB has been run by two members who have issued decisions -- however, their authority to issue decisions has been challenged and is now going to be heard by the Supreme Court.

McCain is pretending to be opposed to Becker because of a law review article he wrote in 1993 when he was a professor.  In the article, Becker postulated that employers have no interest in union elections, and therefore should be limited in their ability to campaign.  McCain and some on the right are now using that article and the Becker nomination as a proxy for their opposition to the Employee Free Choice Act.

Democratic leaders need to buck up and support Becker now.  If we've learned one thing from the health care fiasco, it's that coming to the middle in an attempt to compromise before the other side has offered anything is a mistake.  When Bush was in office he nominated and pushed through individuals from the far right, Congress be damned.  Clinton, in contrast, often appointed moderates in the hope of appeasing his right-wing opposition.  If there's one thing we've learned from the health care fiasco, it's that this President's opponents will oppose him no matter what.  So he might as well just push for what, and whom, he believes in.