Card Check, NLRB: At Berkeley, a Hearing on First Contracts

The House Education and Labor Committee has scheduled a field hearing next Friday in Berkeley, with a hearing title that raises suspicions that advocates of the Employee Free Choice Act (EFCA) are looking for another way to sneak through provisions of the legislation. The hearing was called by Chairman George Miller (D-CA), chief sponsor of EFCA (H.R. 1409) in the House.

The hearing’s title: “Understanding Problems in First Contract Negotiations: Post-Doctoral Scholar Bargaining at the University of California

A central, anti-democratic provision of the Employee Free Choice Act is the imposition of binding arbitration in first-contract negotiations. Under Section 3 (see extended entry), a panel of government-appointed arbitrators forces an agreement onto an employer and employees if a first contract is not reached within 90 days of negotiations and 30 days of mediation. As Richard Epstein of the University of Chicago Law School puts it, “[EFCA’s] compulsory arbitration structure introduces a partial but large-scale, covert government takeover of the private sector.”

And talking about “sneaking through,” here’s an unusual addition to the hearing notice: “Due to the off-site location of this hearing, there will be no webcast, videos or photos.”

There’s no lecture hall at Berkeley with video or Internet connections? Or space to take a photo? Ridiculous.

Another reason to pay attention to the hearing is its focus on union representation in the university setting. When President Obama made the recess appointments of Craig Becker and Mark Pearce to the National Labor Relations Board, speculation immediately started that the new, activist and pro-labor NLRB would find a way to reverse the board’s 2004 decision in the Brown University case (Brown University, 342 NLRB at 487), which held that graduate student teaching assistants could not unionize. But what about post-doc scholars?

The NLRB’s Chairman, Wilma Liebman, certainly anticipates the issue. As The Chronicle of Higher Education reported, “Faculty-Union Allies, Hopeful About Obama’s Labor Board, Hear From Its Leader“:

It’s only a matter of time before the National Labor Relations Board is faced with a challenge to a 2004 ruling that says graduate students at private institutions aren’t employees and therefore don’t have bargaining rights, its leader told attendees at a labor conference here on Monday.

“This is not an issue that we’ll bring up, but I have heard there are cases out there in the works,” said Wilma B. Liebman, the opening speaker at the conference, held at the City University of New York’s Baruch College.

So here it is, the issue being brought up, courtesy of the House Education and Labor Committee.



    Section 8 of the National Labor Relations Act (29 U.S.C. 158) is amended by adding at the end the following:
    `(h) Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:
    • `(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.
      `(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.
      `(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.’.

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