***WORST*** NLRB Chair in HISTORY Q & A : EFCA

[Earth Bound Misfit]

http://www.dcemploymentlawupdate.com/2009/02/articles/efca-1/efca-q-a-with-battista-will-it-pass/

Robert J Battista, who served as Chairman on the * labor board for 5 years, and whose reward for a "Mission Accomplished" was a lucrative position with one of the leading Unionbusting Law firms, Littler Mendelson, recently answered some questions re: EFCA

Jay: Of the three most contentious provisions of EFCA – (1) “card check” union certification, (2) binding interest arbitration if first contract isn’t reached, and (3) increased employer penalties for unfair labor practices – which do you see as the most damaging to employers if implemented, and why?

Bob: All these provisions are problematic, but I believe binding interest arbitration has the potential to be the most damaging. Under EFCA, an employer has a duty to commence bargaining on a first contract within 10 days of a written request from a newly recognized or certified union. After 90 days either party can request mediation and, if no collective bargaining agreement is reached within 30 days of such request, the matter can be sent to binding interest arbitration. That means that in as little as 120 days, negotiations can be taken from the parties, and the terms and conditions of the collective bargaining agreement can be dictated by a federally appointed interest arbitrator. The provision is disturbing in two ways. First the 120 days for negotiations under EFCA is unnecessarily short. Indeed, it is not unusual for parties to take 6 to 12 months to negotiate a first agreement. With such a truncated period for bargaining, I fear there will be LESS GOOD FAITH BARGAINING (emph added) and more posturing by the parties for the interest arbitrator.

Secondly, until now the federal government had a limited role in the collective bargaining process. The NLRB determined whether the parties bargained in good faith and the FMCS assisted the parties when mediation was requested. The federal government never dictated the terms of the parties agreement – that responsibility was left to the parties. Under EFCA, however, determining the terms and conditions of a first collective bargaining agreement can be taken from the parties in as little as 120 days and imposed by a federally appointed arbitrator who may have little or no knowledge of the employer’s business or competitive situation nor the concerns the employees may have. It is the antithesis of free collective bargaining and is wrong for America.

Jay: Which provisions, if any, would have little impact on the way employers do business?

Bob: None. All of EFCA’s provisions would have a profound impact on the way employers do business.

Jay: Assuming EFCA is reintroduced in the same form it took in the 110th Congress, what is the likelihood it will pass without substantial modification?

Bob: It is difficult to say. In the House, EFCA will likely be introduced directly on the floor and passed without modification. The real fight over EFCA will take place in the Senate. The only weapon the opponents of EFCA have is the filibuster and it takes 60 votes on a cloture motion to end a filibuster. In 2007, a cloture motion failed by a 9 vote margin (51-48) and EFCA was tabled. Votes in the House and Senate were largely along party lines.

In the 2008 election, the Democrats gained 7 new seats. Currently Democrats hold 56 seats with Minnesota still outstanding. Al Franken’s 225 vote lead over incumbent Republican Norm Coleman has been challenged in the courts where a three judge panel is considering up to 4797 rejected absentee ballots, one ballot at a time. There are 2 independents (Joe Lieberman of Connecticut and Bernie Sanders of Vermont) who vote with the Democratic caucus.

If Senate Majority Leader Harry Reid can keep moderate “blue dog” Democrats from defecting, and induce some Republicans to support cloture (Possible candidates are Arlen Spector of Pennsylvania, Susan Collins and Olympia Snow of Maine), EFCA could pass in its present form. On the other hand, winning a cloture vote may be more difficult than one would think. Senator Blanche Lincoln of Arkansas has said she will not vote for cloture this time around. Her fellow senator from Arkansas, David Pryor, is wavering on EFCA, as are “blue dog” Democratic Senators Tim Johnson from South Dakota and Ben Nelson from Nebraska. Newly elected Democratic Senator from Virginia Mark Warner has not taken a public position on EFCA. There are other Democratic Senators who may be having “buyers remorse” and may re-think their position on cloture now that the threat of a Presidential veto has been removed. If cloture cannot be achieved, EFCA may be withdrawn for reintroduction at a later time, or substantially modified as a result of negotiations between the two sides.

Other questions asked:

Which provision(s) do you see as subject to the most revision, and why?

Do you see any constitutional impediments to EFCA?

What factors do you think will most influence EFCA’s passage?

What factors could delay EFCA’s introduction and/or passage?

What would be EFCA’s immediate impact on employers?

Is there anything an employer can or should do now in anticipation of EFCA’s reintroduction?

Assuming EFCA is eventually enacted in some form, what is an employer’s best course of action?

Read his answers at the link: http://www.dcemploymentlawupdate.com/2009/02/articles/efca-1/efca-q-a-with-battista-will-it-pass/

[Earth Bound Misfit]

1. Some particularly delusional passages from Battista's Q&A...

And one very telling remark that OBLITERATES the BS meme that EFCA "takes away" workers rights to a secret ballot

...under the NLRA, as amended, the Federal Government did not have a role in determining the substantive provisions of a collective bargaining agreement. That was left exclusively to the parties. The Act required good faith bargaining and those provisions were policed by the NLRB...

...According to a poll recently taken by McLaughlin & Associates three out of four voters in union households oppose the card check provisions of EFCA, and 85% of those polled believe a federally supervised election is the best way to protect the individual rights of workers. America clearly believes the secret ballot election is the symbol of industrial democracy and should be left alone.

If EFCA passes in its present form, it will change the kind of union organizational campaign an employer will experience. Currently, unions run "covert campaigns" (quotes added) to get authorization cards signed for showing of interest purposes. Then the union files a petition for an election, the campaign comes out into the open and a vigorous debate takes place between the employer and the union on the merits of unionization....When the employee votes, having heard the arguments from both sides, he is able to make an informed decision on whether or not to be represented.

If EFCA passes, however, the entire union organizing campaign will be covert. Employee’s will hear only one side of the issue – the union’s. When a petition is filed under EFCA it will likely be for a card check and there will be no post petition to election period for the employer to tell his “side of the story.” Informed decision making, a hallmark of the secret ballot election, will be lost.

"When a petition is filed under EFCA it will likely be for a card check and there will be no post petition to election period for the employer to tell his “side of the story.”"

That's right folks, none other than Bob Battista ADMITS THAT THE EFCA DOES NOT ELIMINATE THE SECRET BALLOT, BUT MAKES IT THE CHOICE OF THE EMPLOYEES, RATHER THAN THE EMPLOYER. The man, who, by virtue of his 40+ yrs of labor relations experience including 5+ years as NLRB Chairman, must be considered one of the most knowledgeable, if not the most, experts in the field.

The man so glowingly described by Littler's press release announcing his employment:

“Bob Battista’s extensive labor relations law practice and authority in the greater D.C. area, regionally and nationally are invaluable, and we consider his addition a coup for our Washington D.C. office and the firm overall,” said Marko Mrkonich, president and managing director of Littler Mendelson. “Littler and its clients will benefit considerably from Bob’s firsthand experience and years of leadership at the NLRB.”

“I am proud to join the illustrious Labor Management Relations Practice Group at Littler Mendelson,” said Battista. “Littler has a longstanding tradition of excellence, particularly in the labor relations arena, and I look forward to working with clients in D.C. and nationally.”

Before his appointment as the NLRB Chairman, Battista practiced for more than 37 years as a labor and employment lawyer with Butzel Long, a Detroit, Mich., firm. While at Butzel Long, Battista served as counsel and trial attorney for numerous companies, educational institutions and multi-employer associations, before state and federal administrative agencies, in arbitration, and in state and federal courts. In addition, Battista had extensive experience serving as chief spokesperson in collective bargaining negotiations on behalf of individual companies as well as multi-employer associations.

Battista is a former chair of the Labor and Employment Law Section of the Michigan Bar Association, a former member of the Advisory Committee to the Michigan Employment Relations Commission, and is a Fellow with the College of Labor and Employment Lawyers. In 2006, he received the Distinguished Service Award from the Labor and Employment Law Section of the State Bar of Michigan. Battista earned his Bachelor of Arts degree from the University of Notre Dame in 1961 and received his law degree from the University of Michigan Law School in 1964.

Battista, whose term as chairman of the NLRB ended in December 2007, will begin at Littler Mendelson on May 5, 2008.
http://www.earthtimes.org/articles/show/littler-mendelson-welcomes-robert-j-battista-to-growing-washington-dc-office,379383.shtml