On Sunday, December 13, 2009, the Senate approved the $446.8 billion fiscal year 2010 consolidated appropriations bill (H.R. 3288), on a 57-35 vote. The omnibus bill consolidates six of the seven remaining fiscal year 2010 appropriations bills: the Commerce, Justice, Science, and Related Agencies Appropriations Act (H.R. 2847); the Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act (H.R. 3293); the Financial Services and General Government Appropriations Act (H.R. 3170); the Military Construction and Veterans Affairs Appropriations Act (H.R. 3082); the Department of State, Foreign Operations, and Related Programs Appropriations Act (H.R. 3081); and the Transportation, Housing and Urban Development and Related Agencies Appropriations Act (H.R. 3288). 

Under this omnibus appropriations bill, the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission will all receive increased funding in FY 2010. The Department of Labor’s budget will increase $431 million from FY 2009, the National Labor Relations Board’s budget will increase $20.8 million from FY 2009, and the Equal Employment Opportunity Commission’s budget will increase $23 million from FY 2009. In total, under the bill the Department of Labor will receive $13.3 billion in discretionary funding, the National Labor Relations Board will received $283.4 million, and the Equal Employment Opportunity Commission will receive $367.3 million.  

If signed into law, the bill will also provide funding for the Justice Department’s Civil Rights Division ($145 million), the Federal Mediation and Conciliation Service ($46.7 million), the National Mediation Board ($13.5 million), the Occupational safety and Health Review Commission ($11.7 million), the Federal Mine Safety and Health Review Commission ($10.4 million), the U.S. Commission on Civil Rights ($9.4 million), and the National Council on Disability ($3.3 million).

As noted in the Senate Appropriations Committee summary, the bill would also present additional targeted funding for unemployment insurance program operations ($3.2 billion), dislocated worker employment and training ($1.4 billion), the Department of Labor’s “worker protection” agencies that regulate pensions, mine safety and health, occupational safety and health, wage and hour rules, and federal contractor compliance ($1.6 billion), and military veteran’s employment and training ($256 million).

The House previously approved the omnibus bill on December 10, 2009, on a 221-202 vote. The legislation now moves to the White House to be signed by the President. President Obama is expected to sign the bill.

Core Provisions: This legislation would amend the National Labor Relations Act and the Railway Labor Act to provide greater protections for individuals choosing to form, join or assist labor organizations, or to refrain from doing so. The bill would modify section 7 of the National Labor Relations Act, 29 U.S.C. § 157, to exclude language which makes an employee’s right to form, join, or assist labor organization, or to refrain from such activities, subject to any agreement requiring membership in a labor organization as a condition of employment. The bill would also modify section 8(a) of the Act to strike language that makes an employer’s inability to encourage or discourage membership in a labor organization subject to an employer’s ability to make certain agreements with labor organizations relating to conditions of employment. The bill would modify section 8(b) by removing language that makes it an unfair labor practice for a labor organization to discriminate against an employee whose membership has been denied on some ground other than failure to pay dues, and by striking language that protects only employees covered by an agreement from being required to pay excessive or discriminatory fees.  The proposed changes would also modify section 8(f) by striking language that deals with an employer in the building and construction industry’s ability to make agreements dealing with employees engaged with a labor organization. 

This legislation would modify the Railway Labor Act, 45 U.S.C. § 152, by removing paragraph Eleventh, which permits unions to make agreements to ensure the security of the union. 

Status: Rep. Steve King (R-IA) introduced the bill on November 18, 2009.  It was referred to the House Committee on Education and Labor that same day.

Core Provisions: The bill would amend Section 8(a) of the National Labor Relations Act to empower employers to refuse employment to “professional union organizers and agents” when the primary objective of these job applicants or employees is not employment.  The bill targets the practice of union “salting,” in which union organizers seek employment with a nonunion business with the intent to unionize the company’s workforce.  Currently, “salts” are considered “employees” and, accordingly, are afforded the protections of the Act.   The bill would remove such protection for these job applicants and employees by not requiring an employer to employ “any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.”  The stated purpose of the bill is to avoid workplace disruption and end employer harassment.

Status: Sen. Jim DeMint (R-S.C.) introduced the bill on June 10, 2009, and it was referred to the Senate Health, Education, Labor and Pension Committee.  A similar bill was introduced on the same day in the House by Rep. Steve King (R-IA), which was referred to the House Committee on Education and Labor. 

Core Provisions: The bill would amend Section 8(a) of the National Labor Relations Act to provide that the Act’s prohibition of unfair labor practices does not require an employer to “employ any person who seeks or has sought employment with the employer in furtherance of other employment or agency status.” As detailed in the bill’s findings and purposes section, this amendment would attempt to discourage the tactic of “salting,” the practice by which professional union organizers and agents seek employment with a non-union employer primarily for the purpose of organizing the employer and/or inflicting economic harm on the employer.

Status: Rep. Steve King (R-IA) introduced the bill on June 10, 2009, and it was referred to the House Committee on Education and Labor that same day.

Core Provisions: The bill, known as the “RAISE Act”, would amend the National Labor Relations Act to provide that an employer does not commit an NLRA unfair labor practice or violate the terms of a collective bargaining agreement by paying its employees greater wages, pay, or other compensation than provided for in the applicable collective bargaining agreement.  Thus, the bill would effectively establish that wage scales contained in collective bargaining agreements represent a floor, but not a ceiling, for bargaining unit employee pay. 

Status: Rep. Rep. Tom McClintock (R-CA) introduced the bill on June 4, 2009, and it was referred to the House Committee on Education and Labor that same day.

Core Provisions: The Green Jobs Improvement Act (H.R.6220) would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for federal funding under the “Green Jobs” program. 

The Green Jobs program provides funding for energy efficiency and renewable energy worker training programs. Participation in the Green Jobs program is currently restricted to entities that partner with labor organizations. The proposed legislation would remove this eligibility requirement, opening the energy-oriented training funding to a broader range of employers and training partners. Under the proposed language, the scope of participation would include “industry and may include workforce investment boards, community-based organizations, qualified service and conservation corps, educational institutions, small businesses, public employers, cooperatives, State and local veterans agencies, veterans service organizations, and labor organizations, including joint labor-management training programs.”

Status: H.R. 2026 was introduced by Rep. John Kline (R-MN) on April 22, 2009 and referred to the Committee on Education and Labor. The bill currently has 12 cosponsors. The full text of the bill has not yet been released.  Rep. Kline introduced a similar bill in the 110th Congress, but that bill failed to make it out of committee. 

Core Provisions: On April 20, 2009, Senator Richard Durbin (D-IL) reintroduced The Patriot Employer Act, a legislative initiative designed to encourage businesses to increase wages and benefits and adopt a position of neutrality in unionization drives.  In August 2007, then-Senator Barack Obama (D-IL) co-sponsored a virtually identical bill with Senators Durbin and Sherrod Brown (D-OH). The 2007 bill never made it out of the Senate Committee on Finance, but it was a centerpiece of Obama’s campaign for president.

The current bill would amend the Internal Revenue Code to provide a one percent tax credit to qualifying “Patriot” employers.  To be designated a “Patriot” employer, a business must (1) maintain headquarters in the United States, (2) pay 60 percent or more of each employee’s health care premiums, (3)  observe a policy of neutrality in union drives, and (4) provide a specified living wage and retirement benefit to employees.  Additionally, employers that employ 50 employees on average, must (5) preserve or increase full-time positions in the United States (relative to full-time positions in other countries) and (6) provide full salary and insurance benefit differentials for all National Guard and Reserve employees called to active duty.

Status: S.829 was introduced by Senator Durbin on April 20, 2009 and referred to the Committee on Finance.  On February 11, 2009, the House version of the bill, entitled the Eagle Employers Act, was introduced by Rep. Jim Gerlach (R-PA) and referred to the House Committee on Ways and Means. The House bill does not require employer neutrality in union organizing drives.

On March 24, 2009, Senator Arlen Specter (R-PA) delivered remarks on the Senate floor concerning his position on the controversial Employee Free Choice Act of 2009 (H.R. 1409; S. 560). In his remarks, Senator Specter announced his intent to vote against cloture on the bill.

Cloture is the procedure by which the Senate can vote to place a time limit on consideration of a bill, thereby avoiding a filibuster and permitting the legislation to advance towards a vote. A vote to invoke cloture requires the support of three-fifths of the full Senate or 60 votes. Given the current composition of the Senate (57 Democrats; 2 Independents; 41 Republicans), every vote is critical.    

Senator Specter’s position on this issue is important, because he was the only Republican Senator to vote for cloture on identical legislation that was proposed in 2007. At the time, Senator Specter noted that his vote was not in support of the merits of the proposed legislation but, instead, was calculated to force the Senate to take up the issue of labor law reform.

In his statement, Senator Specter also expressed his reservation to both the card check and interest arbitration provisions of the proposed legislation, particularly in light of the current economic climate. He further suggested several comprehensive amendments to the National Labor Relations Act, including measures restricting visits to employees’ homes, employer speeches, and campaign-related activities within twenty-hour hours of an election. His suggestions also include mediation, rather than arbitration, if a first contract is not reached. The full text of Senator Specter’s statement and suggested revisions are available on his website.  

Core Provisions: This legislation would require employers to provide labor organizations with equal access to employees prior to a representation election.  This bill also resembles the controversial Employee Free Choice Act of 2009 (EFCA), which was introduced by Congressional Democrats on March 10, 2009, in several respects. Like the EFCA, the bill contains provisions designed to increase employer penalties for unfair labor practices during organizing campaigns and to expedite the bargaining process surrounding a first collective bargaining agreement. Unlike the EFCA, however, the bill lacks the card check provision that allows a union to become the certified bargaining representative simply by obtaining signed authorization cards from a majority of employees in a proposed bargaining unit. 

Under the proposed legislation, within 30 days of the National Labor Relations Board directing an election, the employer must notify the designated union of “any activities the employer intends to engage in to campaign in opposition to recognition of the [union],” including any announcements, meetings, signs, or literature. The employer would be required to provide the union with equal access to the place of employment to campaign in favor of the union. This would mean providing the union with the opportunity to hold an equal number of meetings with individual employees or groups of employees, make announcements, display signs, and distribute literature, under the same terms and conditions that the employer engages in such activities.

The legislation includes provisions similar to those in the EFCA to facilitate an initial collective bargaining agreement, although this bill would apply only to employers with at least 20 employees and allow employers and unions additional time to reach an agreement before a party could initiate interest arbitration. Under this bill and the EFCA, the parties must begin bargaining within 10 days of a written request by a newly-certified union. But under the proposed legislation: (1) the parties would have 120 days to negotiate the terms of a collective bargaining agreement before either party can request mediation before the Federal Mediation and Conciliation Service (FMCS); (2) an additional 120 days to mediate before the parties were forced into mandatory interest arbitration before a panel appointed by the FMCS; and (3) the arbitration panel’s ruling would be effective for 18 months. In contrast, EFCA proposes a 90-day period to negotiate before a party can request mediation; an additional 30 days to mediate before going to mandatory interest arbitration; and an arbitration ruling that is effective for 2 years.

The legislation also includes an anti-retaliation provision and remedies identical to those included in EFCA. The remedies include liquidated damages in the amount of twice the awarded back pay and civil penalties of $20,000 for each time an employer willfully or repeatedly violates its employees’ right to organize.

Status: Rep. Sestak (D-PA) introduced this legislation on March 5, 2009, and it was referred to the House Committee on Education and Labor.

Core Provisions: This legislation would give employees a statutory right to request flexible work terms and conditions. Modeled after similar laws in Europe, the legislation provides for an interactive process by which an employee can request changes to his or her schedule, location of work, or the number of hours worked. Employers would be required to meet with the employee and a designated representative of his or her choosing to discuss the request, give a written decision to the employee, and must justify any denial in writing. If the employee is dissatisfied with the employer’s explanation, he or she may request reconsideration of the decision, in which case the employer would have to go through the interactive process again. The legislation also contains an anti-retaliation provision.  

The bill, which contains an exemption for small businesses with less than 15 employees, gives employees the right to make a complaint to the Department of Labor and provides for enforcement through Department of Labor investigations, administrative hearings, and federal court proceedings.

Status: H.R. 1274 was introduced by Reps. Maloney (D-NY), Miller (D-CA), Lewis (D-GA), and Cummings (D-MD) on March 3, 2009 and referred to the Committees on Education and Labor, Oversight and Government Reform, Administration, and the Judiciary. Identical legislation was introduced in the 110th Congress (H.R. 4301, S. 2419), with the Senate bill being co-sponsored by Sen. Kennedy and then-Sens. Obama and Clinton. Neither bill made it out of committee.