EFCA Report : EFCA Lawyer & Attorney : Employee Free Choice Act

As the Senate Recess begins, observers continue to speculate whether President Obama will use recess appointments to place nominee Craig Becker on the National Labor Relations Board.  Last week, Becker's nomination stalled in the Senate when a motion for cloture failed 52-33.  Later in the week, the President strongly suggested that he would not be using recess appointments at this time.  In an opinion piece in today's Politico, University of Texas Professor William E. Forbath asserts that Becker should be confirmed:

Cautious Democrats are urging the White House against making a recess appointment of Craig Becker to the National Labor Relations Board. But these timid Democrats are wrong.

Many argue that the fallout from a Becker appointment would be self-defeating for labor because it would end any chance of getting the Employee Free Choice Act through the Senate. But the EFCA died when Sen. Scott Brown (R-Mass.) took his seat, if it wasn’t dead already. The EFCA won’t pass unless and until the filibuster rules are changed. And then, the Becker appointment won’t matter.

At Human Events, the Heritage Foundation's Brian Darling argues against the use of recess appointments:

A recess appointment can be made to put a nominee into a position temporarily, usually for a year or so, when the Senate is out of session. Many Democrat Leaders in the Senate vigorously opposed President George W. Bush’s use of recess appointments, but now support Obama’s stated intent to use recess appointment authority.

One of the questionable nominees is Craig Becker (for the National Labor Relations Board). Becker was blocked last week by the Senate because many are concerned about his views on the Executive Branch’s power to implement big labor’s agenda without legislation. 

But as noted above, over the weekend, Sam Stein reported in the Huffington Post that the President would not appoint Becker by recess appointment:

Among those on the losing end of the deal struck between Obama and Senate Minority Leader Mitch McConnell (R-Ky.) are labor unions.  Craig Becker, the president's nominee for the National Labor Relations Board who was filibustered by the Senate this past week, will not get the recess appointment next week that union officials were hoping. Instead, his nomination is either dead or put on hold until the next Senate recess at the end of March.

Elsewhere in the Huffington Post, Bill Lucey had a great piece chronicling the historical use of recess appointments by Presidents, "Examining the 'Recess of the Senate'".

More on this issue:

• "White House: No Recess Appointments During Next Week's Break" -- ShopFloor.org
• "Obama’s Love of Labor Makes for One Unholy Union: Kevin Hassett" -- BusinessWeek
• "Recess Posting Possible" -- Wall Street Journal

 

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The Senate has posted the roll call on the Becker cloture vote here. 

Let the political speculation begin.  What impact did the snow and the shutdown have?  What impact did Senator Nelson's proclamation have on participation?

These Senators did not cast a vote:

Brownback (R-KS) Byrd (D-WV) DeMint (R-SC) Ensign (R-NV) Graham (R-SC)

Gregg (R-NH) Hatch (R-UT) Hutchison (R-TX) Inouye (D-HI) Landrieu (D-LA)

Pryor (D-AR) Roberts (R-KS) Sanders (I-VT) Thune (R-SD) Vitter (R-LA)

Perhaps notably, Senators Landrieu (D-LA) and Pryor (D-AR) did not vote.  Their names are often mentioned as Dem dissenters on EFCA.  This list is certain to be dissected by the punditry and interest groups in days to come.

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In advance of a probable filibuster (with growing support) over Craig Becker's nomination to the National Labor Relations Board, Glen Spencer of the U.S. Chamber's Workforce Freedom Initiative and former Clinton-Gore advisor Peter Mirijanian swapped commentary on Fox News earlier today:

The anchor led with the angle that concerns have been raised about Mr. Becker's ability to implement elements of EFCA via administrative action. Challenged by the anchor, Mr. Spencer conceded "it would be difficult to get some of the ideas in the card check bill through administratively, but there's no question, I think, that Mr. Becker would try." In a wide-ranging defense of Mr. Becker's nomination, Mr. Mirijanian dismissed opposition as "politics" and suggested that Mr. Becker would not be able to impose EFCA by "administrative fiat."

As of right now, weather permitting, the Senate intends to take up the vote at around 5 p.m. today.

More commentary:

• "Nelson Joins GOP In Opposition to Obama Nominee" -- CNN Political Ticker
• "Senate Dem Nelson Joins Republican Filibsuter Against Obama's NLRB Choice" -- AFL-CIO blog
• "Ben Nelson to Filibuster Key Obama Labor Nominee" -- Huffington Post
• "Sen. Nelson (D-NE) Will Vote Against Cloture on Becker" -- ShopFloor.org
• "With Nelson, GOP Blocks Obama Labor Board Nominee" -- ABC News
• "Senate Votes Today On SEIU Lawyer For NLRB" -- Human Events
• "Blue Dogs Running For Cover Over NLRB Nominee" -- American Thinker

 

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Politico reports Monday night that Sen. Ben Nelson (D-Neb.) will support a Republican-led filibuster over President Barack Obama's nomination of Craig Becker to serve on the National Labor Relations Board:

“Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the administration,” Nelson said in a statement. “This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand."

We have previously posted on concerns expressed by many that Mr. Becker might seek to implement elements of EFCA via Board decisions and/or rulemaking.  Tonight's Politico piece notes another EFCA connection:

Republicans have tried to make Becker's nomination a referendum on the Employee Free Choice Act, which would make it easier to unionize. In his statement, Nelson said Becker has made several statements that "fly in the face of Nebraska’s Right to Work laws."

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As prospects for Senate passage of the Employee Free Choice Act, in its current form, have waned, observers have turned their attention to alternative ways in which the bill's components might be implemented.  The possibility attracting the most commentary lately has been the prospect of a new National Labor Relations Board majority, sympathetic to organized labor, using its administrative authority to enforce elements of EFCA. 

A piece in yesterday's Las Vegas Sun, however, suggests another possibility -- that some aspects of EFCA might be tucked into the Obama administration's "jobs bill" currently being developed by the Senate:

On labor law, Bill Samuel, the AFL-CIO’s legislative director, said the union would try to enlist moderate Republicans but acknowledged the difficulty of achieving a bipartisan bill. He said the federation might consider “other tactics,” meaning the card-check legislation or key parts of it could be placed into a larger jobs bill this year.

Democrat Sen. Tom Harkin of Iowa, chairman of the Senate Labor Committee, suggested that was the bill’s fate. “Maybe it won’t be card check,” he said, referring to the full bill. “But there are some things we need to do to straighten out the process for (union) elections and certification and first contract.”

Given the apparent unpopularity of card check among current Republican and moderate Democratic Senators, it is hard to see how adding those provisions advances a jobs bill purportedly intended to have bipartisan support.   We suppose we will see whether any of EFCA's other provisions find their way into the jobs bill when it is introduced -- perhaps as early as this week, weather permitting.

More commentary:

• "Jobs Bill Could Contain Card Check" -- Hot Air
• "U.S. Chamber Chief Warns Against Attaching EFCA to Jobs Bill" -- Workforce Management
• "Obama May Try To Get Card Check Through In Jobs Bill" -- Credibly Connect

 

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The Senate Health, Education, Labor & Pensions (HELP) Committee is scheduled for an executive session tomorrow to consider pending nominations by the President.  The Hill reports today, however,  that a spokeswoman for HELP Committee Chairman Tom Harkin (D-Iowa) said the Committee will not be considering the re-nomination of Craig Becker to the NLRB this week.  Nonetheless, business groups continue to ramp up their opposition to the nomination:

“Yes, we will absolutely oppose the Becker nomination,” said Jade West, senior vice president of government relations for the National Association of Wholesaler-Distributors (NAW). “The NLRB, under the leadership of Becker, could implement the Employee Free Choice Act by fiat.”

The National Association of Manufactures (NAM) also sent a letter to the chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee opposing the nomination.

The Chamber, NAW and NAM were part of a 23-business coalition that wrote to senators last October to oppose Becker’s nomination.

Union lawyers have dismissed the business groups’ concerns in the past, saying such a board ruling would come under heavy legal challenge and only legislation changing labor law would allow the card-check process to take place.

Other commentators sympathetic to labor, however, are less dismissive.  In the Huffington Post's coverage of the nomination debate, Dmitri Iglitzin and Steven Hill write:

To understand what is at stake, it's necessary to understand the potential power of the NLRB, a little-known administrative agency with broad authority over labor matters. The president appoints and the Senate confirms members to this body, and an NLRB on which Obama appointees constitute a majority could overturn a number of key decisions issued by the Bush administration-appointed board. Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:

* drastically shorten the time frame for holding union elections;

* eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;

* require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;

* require equal access to both workers and the workplace for unions during campaigns; and

* increase the penalties on companies that violate their workers' legal rights.

The NLRB even could make it easier for workers to unionize based on a card check showing of majority support--just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as a neutral third party verified that more than 50 percent of those employees had signed a written statement expressing a desire to be represented by that union. That's a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers who threaten retaliation against their workers.

Other commentary on the issue:

• "It's All Academic: Profs Push NLRB Nomination" -- TheTruthAboutEFCA
• "66 Academics to the Senate: Confirm Craig Becker to the NLRB Now" - FireDogLake
• Previous EFCAReport coverage here.

 

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The National Association of Manufacturers (NAM) has sent a letter to the Senate Committee on Health, Education, Labor & Pensions (HELP) opposing the re-nomination of SEIU Associate General Counsel Craig Becker to the National Labor Relations Board (NLRB).  President Obama re-nominated Becker recently after his nomination was returned from the Senate in late 2009.  Among NAM's many concerns about the nomination is the prospect that, following a legislative failure to enact EFCA, Mr. Becker may pursue its goals via the Board's administrative mechanisms:

Mr. Becker’s views indicate that he believes the NLRB has the authority to make certain decisions that are pending in proposed legislation. Such positions include redefining the supervisory status of frontline supervisors in order to place such employees into labor union bargaining units with other eligible employees.  Mr. Becker has written extensively and positively about how the NLRB could rewrite current union election rules in favor of union organizers, a decision that should be left to Congress. We are particularly concerned that if confirmed, Mr. Becker would seek to advance aspects of the jobs-killing Employee Free Choice Act through actions of the NLRB.

Both NAM and the U.S. Chamber of Commerce have requested Committee hearings on the nomination.

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Yesterday, Politico suggested that supporters of EFCA might find some renewed sense of optimism as Congress moves beyond the healthcare debate in 2010.  That optimism was equally reflected in AFL-CIO President Richard Trumka's declaration that the labor movement "will pass EFCA."

Today, however, The Hill is reporting on an interesting legislative strategy development regarding the House of Representatives:

Speaker Nancy Pelosi (D-Calif.) has privately told her politically vulnerable Democratic members that they will not vote on controversial bills in 2010 unless the Senate acts first.

After a year of bruising legislative victories that some political analysts believe have done more to jeopardize her majority than to entrench it, Pelosi is shifting gears for the 2010 election.
 

Specifically about the impact on EFCA:

Pelosi’s promise could dim the prospects for other White House priorities as well, including the Employee Free Choice Act (EFCA) — known as “card check” — and the repeal of the “don’t ask, don’t tell” prohibition on gays serving openly in the military.
 

“There’s not going to be a ton of stuff legislatively next year either way,” a House leadership aide said. “But on EFCA — even though the House has demonstrated its ability to pass it — and on Don’t Ask, Don’t Tell, the Senate is definitely going to have to act first.”
 

The House passed EFCA during the last Congress, but members who voted on that bill were well-aware it had no chance to be signed into law by President George W. Bush.

Now, this isn't a totally new development regarding a "Senate First" approach to EFCA, as House Majority Leader Steny Hoyer (D-MD) announced the likelihood of letting the Senate lead on the issue back in March 2009.  Still, bloggers and internet news services on all points of the political spectrum have responded.

NewsMax reports that union leaders are frustrated with the Obama administration:

Congress has shown no urgency to act on the bill that would make it easier for unions to organize: the Employee Free Choice Act.

Even after Congress is done with healthcare, there’s no guarantee it will act on the union bill. That’s because moderate Democrats may oppose it, especially with the 2010 elections looming. 

FireDogLake questions the strategy:

It’s true that the House has taken the first bite on a host of bills this year, from education to health care to climate change to financial reform, passing basically a substantial chunk of the Obama agenda, with little to show for it. So the Senate does need to walk the plank every now and again.

But consider the leftover items here – immigration reform, labor law reform (Employee Free Choice Act), gay rights (DOMA and DADT repeal), budgetary issues which include taxes, etc. How broadly do you define a “tough vote”? And what will the House then do while waiting for the Senate to act on all of this?

And some, like Harper's Magazine's Ken Silverstein aren't placing all of the impetus on either the House or Senate:

Even less convincing is the argument that Obama can’t get anything done because of a weak Democratic congress. Fine, it’s a lousy congress, but the president sets the tone and signals his priorities. As I noted yesterday, Obama was a big backer of the Employee Free Choice Act (EFCA) when on the campaign trail (when he needed union votes). He’s barely mentioned it since taking office, and so that central demand of labor has gone nowhere. That’s not all the fault of Congress.

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Back in August, AFL-CIO President (then Treasurer-Secretary) Richard Trumka told a webchat audience that efforts to pass the Employee Free Choice Act would probably not advance any further until after Congress was through with healthcare reform.  As the debate over the healthcare legislation soldiers on, Tuesday's Politico noted "For labor, there's always next year":

To be sure, health care reform has been a goal of union leaders for a long time, and they are still working with Congress to win passage. But labor’s top priority — passage of the Employee Free Choice Act — was in trouble almost the moment the Democrats were sworn in, stalled by the unexpectedly long effort to fill their filibuster-proof Senate roster.

 

First, labor advocates had to wait until the contested Senate race in Minnesota was settled and Democrat Al Franken was seated. Then the death of Sen. Ted Kennedy (D-Mass.) caused further delay.

 

Backers of the bill are hoping it will re-emerge as a congressional priority once health care moves from center stage. But even then, it’s unclear whether Sen. Tom Harkin (D-Iowa) has been able to hash out language acceptable to the moderates and conservatives in his caucus — a task made all the more difficult by the looming midterm elections.

 

Still, labor advocates remain hopeful.

There has been nothing reported about specific conversations on alternative approaches to the bill since September, but President Trumka remains committed to resuming the push in 2010, as he expressed during another webchat on Tuesday.

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Columnist Brian A. Howey published a full-length interview with Senator Evan Bayh (D-IN) at his Howey Politics Indiana (HPI) site.  Months ago, we noted Senator Bayh's formation of the "Practicality Caucus" and speculated that groups of moderates would likely seek to change the debate over EFCA.  It seems that remains a strong possibility:

HPI: Where are you on card check? I noticed all the labor guys filing out of here as I arrived and I see you have all your limbs still attached.

Bayh: I’m for reform of the labor law system. I’ve said that repeatedly. I think there are problems with the election process getting strung out months and months and months. Some of the penalties for either side committing abusive conduct are either meaningless because they’re too small or they get strung out for years and it doesn’t have an impact. And when you do have successful elections, sometimes the negotiations go on for years and the results of the elections are frustrated in that. At the same time, I think preserving the secret ballot is a good thing. The hardest issues are what do you do once there’s been a successful election and there’s just an impasse at negotiations? I don’t think we’re going to have binding arbitration. But is the mechanism short of that? Is it some sort of last best offer? Is there some sort of finding of bad faith trigger? Some sort of action for mediation? I don’t know. I’m not on the committee that handles that, either, so I am an observer. I’m hoping we can reach a sensible compromise. Many in the business community this summer felt this is going to go off on an irrational way. I’ve heard their concerns. But many in the business community say, “Look, if you can preserve the secret ballot, have reasonably prompt elections, meaningful penalties for those few bad actors out there, then there is some incentive for people to bargain in good faith.” Many in the business community would support that kind of thing. Many on the labor side would say that’s not everything they want, but it’s a step forward. So I’m hopeful we’ll end up in that place. Only time will tell. I told the labor guys this and this is above my pay grade, but I don’t think we’re even going to vote on it this year.

Hat tip: @WorkforceFrdm

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Kevin Bogardus of The Hill remains one of the most active reporters on the status of the Employee Free Choice Act.  His piece this morning compiles the commentary of numerous Democrat lawmakers seeking to mitigate Senator Arlen Specter's (D-PA) assurances to the AFL-CIO that an alternative EFCA bill had been finalized and would pass in 2009.  Confirming an earlier report by the National Association of Manufacturers Shopfloor Twitter feed, Senator Tom Carper (D-DE) indicates in the piece that there have been no formal talks on the union bill since July, and, that moderate Democrats have not been involved in discussions.

Other remarks from the piece:

• Senator Carper:

“As they say, frank and honest discussion. I think we have made real progress and narrowed somewhat of the differences between organized labor and the business community. We are not quite there yet. My hope is we will finish what we have started.”

• Senator Harry Reid (D-NV):

Asked about any deal on the bill, Majority Leader Harry Reid (D-Nev.) said,” I’m not aware of any.”

• Senator Dick Durbin (D-IL):

Majority Whip Dick Durbin (D-Ill.) said the same, calling the issue “a work in progress” and saying he expects the Democrats’ lead negotiator, Sen. Tom Harkin (D-Iowa), will inform Democrats when a deal is reached.
 

“It’s been in progress for months,” Durbin said. “I think if they ever reach common agreement, they’ll notify us and then we will take it from there.”
 

And confirming Carper's assessment of the "Centrist Democrat" involvement in these talks:

“Nothing final, to my knowledge, has been finalized, but I know members from both sides have been working on, I guess, a compromise,” said Sen. Mary Landrieu (D-La.).
 

Sen. Kay Hagan (D-N.C.) was surprised to hear the issue was being revived. “From what I understood, the whole card-check issue was dead,” Hagan said.
 

And Sen. Blanche Lincoln (D-Ark.), who faces reelection in 2010 and said earlier this year she would oppose the bill, said she is unaware of any changes. “I haven’t heard or seen anything yet,” Lincoln said.

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During the past few days a virtual parade of high-ranking Democrats have addressed the AFL-CIO constitutional convention to pledge support for organized labor and the Employee Free Choice Act.  President Obama, Secretary of Labor Hilda Solis, Senate Majority Leader Harry Reid (D-NV), and House Speaker Nancy Pelosi (D-CA) have all spoken to the assembled union delegates.  Today, The Washington Post Capitol Briefing blog reports Senator Arlen Specter (D-PA) delivered the most interesting message regarding the Employee Free Choice Act -- namely, the conceptual contents of the revised bill which will be passed before year's end:

After his speech, Specter detailed the revised bill he has been crafting with Senate Democrats, the rough outlines of which have been trickling out for weeks. The revised measure would not include the most controversial provision -- allowing workers to organize by getting their co-workers to sign pro-union cards, instead of having to hold secret-ballot elections in the workplace. Unions argue that such elections are unfairly dominated by employer threats and intimidation, but the provision to drop the secret-ballot election has proved highly unpopular with conservative Senate Democrats.

Instead, Specter said, the bill would try to make union elections more fair by sharply limiting the time between organizers' declaration that they have enough support to call an election and the day of the vote, to reduce the potential for employer intimidation. Organizers would also be guaranteed access to workers if employers held mandatory anti-union meetings on company time. And the penalties for employers who break labor law rules would be triple what they are today.

The bill would also tweak its other major element, which has gotten less attention but is also anathema to employers -- mandatory arbitration for employers and unions who fail to reach a contract within a few months. As it stands, more than a third of newly formed unions never get a first contract and wither away, which is why labor supporters say mandatory arbitration is needed. But employers vigorously oppose having government-appointed mediators set contract terms. To allay employer concerns that unions would ask for the moon in hopes of the mediator splitting the difference, the revised bill would go with "last best offer arbitration" -- the approach used in baseball arbitration, in which the mediator has to pick one offer or the other, which encourages the negotiators to offer a reasonable deal.

Specter told reporters that he was confident that this package would get the 60 votes needed to break a filibuster -- and not one more. No Republicans would vote for the bill, he predicted, but he was sure that every Democrat would vote against a filibuster, including conservative Democrats who were very wary of the initial "card check" bill, such as Blanche Lincoln (Ark.) and Ben Nelson (Neb.) He said he had spoken with both of them and while they did not say so explicitly, he was left with the impression that they would help break a filibuster, if not vote for the bill itself.

 More coverage:

• "Specter tells AFL-CIO he backs organizing bill" -- Associated Press
• "Specter seeks labor support at AFL-CIO conference" -- Pittsburgh Post-Gazette
• "Specter: Deal pounded out on card check, should pass this year" -- The Hill

 

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At The Hill yesterday, Kevin Bogardus reported that Senator Tom Harkin told a union lobbying group that but for the late Senator Kennedy's illness, the Senate had 60 votes on a "compromise" draft of EFCA back in July:

“As of July, I can tell you this openly and I know the press is all here but we had worked out a pretty good agreement. Labor was at the table,” Harkin told a crowd of activists organized by American Rights at Work, a labor advocacy group. The activists are set to swarm Capitol Hill Thursday to lobby for the bill.

Harkin said prominent labor leaders were on board with the deal, including AFL-CIO President John Sweeney and Andy Stern, president of the Service Employees International Union.

“That’s when we needed 60 votes and that’s when I called to get Sen. Kennedy down because we needed him for three days. That’s when Dr. Horowitz told me that he couldn’t make it,” Harkin said.

Whether this is merely an encouraging message to an important Democratic constituency, is hard to determine.  And unless and until Massachussets changes its laws to allow Democratic Governor Deval Patrick to appoint a successor, or Kennedy's seat is filled by a special election early in 2010, it seems unlikely that anything will happen to corroborate the Senator's claim.  Harkin refused to provide any additional detail about the brokered version of the bill:

“I will not say because it was closely held, it never leaked out and it still hasn’t,” Harkin said. “I took it off the front-burner and put it on the back-burner so it is still on warm, OK?”

However, back in June, Senator Harkin had asserted that he would likely be in position to advance the legislation once Al Franken was seated in the Senate in July; and, not too long before that, Harkin was reportedly in significant discussions to reach consensus on an alternative.

More on these events:

• "Harkin had the votes to pass the Employee Free Choice Act" -- CongressMatters
• "On Those Harkin Comments" -- The Truth About EFCA
• "Card Check: Harkin Then, Harkin Now" -- NAM's ShopFloor.org
• "Harkin's Rise Gives Labor a Boost" -- Kiplinger's

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At the Liberty Live blog, Scott Dilley posts this C-Span video of Senator Arlen Specter (D-PA) appearing to change course on the issue of cloture on EFCA:

Senator Specter has certainly seemed a good deal more erratic in his public pronouncements on the issue since his announcement that he was switching parties concluded:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees [sic] Free Choice (Card Check) will not change.

Just last week, for example, at a Town Hall meeting, he told a vocal opponent of the bill that the secret ballot must remain a part of the process, that Senators were still addressing the issue of mandatory interest arbitration, and that ultimately "people will ... have an opportunity to understand what the issue is."

Senator Specter seems to be equivocating a bit nowadays, perhaps due to an evolving position, or perceived electoral pressure on both flanks.  But it is also fair to note that throughout most of his early commentary on the bill, he always left open the likelihood that he would support some version of the bill:

The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.

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Today's ChamberPost blog quotes Roll Call regarding the possibility of a troubling Democratic legislative strategy in the Senate on EFCA:

As Senate Democrats struggle to hammer out a compromise bill on union organizing, Majority Leader Harry Reid (D-Nev.) is sketching a process for railroading the bill through the floor as quickly as possible to prevent Republicans from rallying a major campaign against it, senior Democratic aides said...Cutting off debate on the bill would likely ignite a major partisan firestorm, and top Democrats will look to make their move as fast as possible, according to the Democratic aides. "This is not the kind of thing where we could have a long, drawn-out rollout. We'd have to say, 'Here's the deal,' and then get to the floor and get it passed before anyone can mobilize against it," one leadership aide said.

Ironic -- or disturbingly appropriate?  EFCA proponents disallowing the stakeholders (legislators) in a vote ample time to consider and debate the merits of a decision on legislation designed to disallow stakeholders (employees) in a vote ample time to consider and debate the merits of a decision on unionization.  Setting aside the particular elements of EFCA itself, this should be considered a troubling development in terms of our democratic (little "d") legislative process.

Regrettably, some of us expressed concern about this prospect some time ago: "'Workplace Democracy' Should Not Be Decided Behind Closed Doors."

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Today's Atlanta Business Chronicle contains a piece on EFCA suggesting "Revision may speed passage of union bill" (subscription).  McKenna Long & Aldridge partner and EFCA Report blogger Richard Hankins is quoted throughout, including the following passages:

The first major development on the proposal in months occurred when moderate Democrats in the Senate this month decided to drop the bill’s so-called “card-check” provision allowing unions to organize at a work site as soon as a majority of workers signed a card saying they wanted a union. The card check essentially would have replaced secret-ballot union elections.

For months, business groups assailed the provision as an affront to the liberties of American workers, and it became a lightning rod for criticism not only among congressional Republicans but moderate Democrats.

Even though Democrats now hold a 60-40 advantage in the Senate, the card-check threatened the bill’s chances of passage, said Richard Hankins, a partner in the Atlanta office of McKenna Long & Aldridge LLP who specializes in labor relations.

“This compromise is to get past a filibuster,” he said.

And, echoing an earlier blog post here:

“What if we had to vote on our political leaders with five days’ notice?” Hankins said. “Many employees are simply not going to know ... anything about the union or its effect on their jobs.”

Finally, regarding the ultimate fate of the bill:

Hankins said getting rid of card check makes it more likely that the Employee Free Choice Act will clear the Senate.

But he said the more liberal House of Representatives probably still will pass the original version of the bill, with the card-check provision intact, leaving the measure’s final fate up to a joint House-Senate conference committee.

“The concern is that card check would come back at that point and work its way into law,” he said.

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On July 22, 2009, Rep. Zoe Lofgren (D-CA) entered an extension of remarks into the Congressional Record in support of the Employee Free Choice Act.  Rep. Lofgren submitted a July 20, 2009 speech by former NLRB Chairman William B. Gould IV to the 58^th Annual Conference of the Association of Labor Relations Agencies.

Chairman Gould served on the NLRB during the Clinton administration, and is a Stanford University law professor emeritus. He also has long been a critic of EFCA as currently drafted, while remaining an outspoken voice in favor of significant labor law reform. His comments earlier this week continue to reflect that position:

This significant legislative proposal warrants dispassionate examination in an arena which has been too frequently divided and polarized. My sense is that the bill even with proper amendments—and I am quite confident that if it is enacted it will be amended—will have a considerable impact on the workplace. EFCA and labor law reform contain some of the assumptions that I have held for more than four decades, i.e., that the Act is plagued with lethargic enforcement, creaky and convoluted administrative procedures and ineffective remedies, that it is not working well and that, as a result, some employees who wish to join unions are unable to do so.

As talk of “compromise” or alternatives emanate from Washington, Chairman Gould’s is likely to become a more important voice -- should EFCA’s proponents have any serious interest in truly intelligent and “dispassionate examination” of the issues involved. Chairman Gould’s prior criticisms of EFCA have consistently focused on Sections 2 and 3 -- the card-check and interest arbitration provisions.  But regarding Section 4, which would increase penalties against employers during organizing efforts and negotiations, Chairman Gould said:

I think that the Employee Free Choice Act is right on the mark in establishing a treble damage award for back pay. For too long, an award of back pay minus interim earnings has been regarded by everyone involved on all sides as a license fee for employer misconduct because back pay is cheaper than a union contract.

 

EFCA also provides for fines up to $20,000 for each employer violation as well as new contempt sanctions. And again, I think that the new law has it right in expanding and making more effective the Board’s injunctive authority for employer unfair labor practices—in much the same manner that the statute has established them for union unfair labor practices since the Taft-Hartley amendments.

Regarding the remainder of the bill, however, Chairman Gould still believes “there is much more room for debate.” Reiterating that he finds card-check an inferior method of selection, he endorses the current thoughts being circulated regarding quicker elections:

The answer here is to both expedite elections—to require that they be held within a couple of weeks of the union’s petition, as is done in the provinces of Ontario and British Columbia—and to reverse Supreme Court precedent excluding non-employee union organizers from company premises so that they can carry their side of the message to employees more effectively in the run-up to the ballot itself.

Likewise, Chairman Gould suggests that mandatory interest arbitration as a default proposition for all new bargaining relationships is over-reaching:

However, EFCA-sponsored interest arbitration, in contrast to the grievance or rights variety, is relatively untested in the private sector in the United States. In Canada, which has first contract arbitration in most provinces, the process is rare and used sparingly (except in Manitoba where it is automatic after a specific time period). The conundrum is that the potential for a mechanism like this must be available to rescue bargaining which is at a stall, and yet its mere availability can undermine the collective bargaining process itself which is furthered by the Act.

 

The proper approach here, it seems to me, is to provide that the mediator—perhaps in consultation with the NLRB itself—should certify after extensive mediatory efforts that collective bargaining is either at an impasse or dysfunctional. As it presently stands, EFCA simply allows for arbitration to be invoked after three months of collective bargaining and subsequent mediation. Not only is this period of time too abbreviated, but by spelling out a specific period of time after which arbitration is automatic, it encourages the parties to maneuver in anticipation of arbitration in a way which can erode the voluntary collective bargaining process. Moreover, this approach fails to take into account the fact that both sides are frequently learning for the first time as they put together their very first collective bargaining agreement.

 

Arbitration must be used sparingly, although it should remain available in the final analysis so as to shore up a relationship which might otherwise disappear.

Chairman Gould concluded his presentation with a number of additional reform recommendations -- encouraging NLRB rule-making; unfreezing jurisdictional guidelines; allowing expansion of state labor law; eliminating batching of NLRB appointees; and reducing the size of the Board, while extending terms and barring re-appointment.   A thorough read of this piece by all serious management representatives, advocates or attorneys is a must.

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Two interesting viewpoints on labor law reform appeared today in today’s online edition of Politico. 

Will Marshall, President of the Progressive Policy Institute, wrote an article entitled “Setting the Stage for a ‘Grand Bargain’ on EFCA.” In it, Mr. Marshall, a centrist Democrat, suggested a “modified EFCA” that would address concerns raised by both labor and management. His proposals:

·       Use majority sign-up to trigger an expedited election. This seems to be what the Senate moderates have in mind. Holding secret votes within, say, a month after the cards are counted would limit the time available to either side to strong-arm workers.

·       In lieu of binding arbitration, authorize the NLRB to make workers whole when an employer fails to bargain in good faith. For example, the board could order employers to offer compensatory relief based on lost wages and benefits, in comparison with equivalent labor agreements.

·       Guarantee unions fair access to workers. One way would be to limit the number of meetings employers can declare mandatory during an organizing campaign.

Mr. Marshall asserts his belief that these changes are necessary because: 

[T]here is wide consensus that U.S. labor laws, framed in America’s industrial heyday, need to be modernized to fit the smaller, more fluid and more collaborative workplaces that now dominate the U.S. economic landscape.

Specifically, observers on all sides agree that the NLRB . . . takes far too long to reach decisions and that the penalties for ignoring its rulings are too weak.

The other view can be found in the comments following Mr. Marshall’s article. John Raudabaugh, who served as an NLRB Member from 1990-93 and is now a partner at Baker & McKenzie, wrote:

Labor's density has declined for many reasons including less commitment on organizing, failing to improve value-added services to "sell," and internal union disharmony. Refusing to acknowledge merit over lowest-common-denominator and fostering an entitlement culture is a non-starter. To reward failure with legislative imprimatur is absurd. However, if our elected representatives feel obligated to beltway centric labor: (1) any new penalty system must be applicable to labor too and for all violations of any kind at any time, (2) correct the wrongly decided Enmons loophole to the Hobbs Act, (3) re-introduce the TEAM Act to make lawful a collaborative, non-adversarial workplace, (4) provide hands-on free mediation assistance to first contract bargaining for unions and employers upon request, (5) merge the FMCS and the NLRB to provide seamless service, (6) reorganize representation case processing at the NLRB under a central intake, hearing, and decisional process at headquarters utilizing videoconferencing and related technologies removing regional office involvement, (7) make NLRB appointments one term only for seven years or consider creating a specialized Article III court to handle all workplace related matters including controversies arising under the NLRA, OSHA, and EEO related statutes. . .  hold hearings and conduct studies by meeting with senior agency staffers individually to solicit their ideas.

Mr. Raudabaugh expressed many of these ideas in Senate testimony on April 2, 2008. 

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The recent suggestions that Senators may jettison card-check, or “majority sign up” (or whatever we’re supposed to call it these days) from the Employee Free Choice Act comes with word that it may be replaced by a mandate that elections be held within five or ten days of the date a petition is filed. Criticism of EFCA seemed immediately to shift to the interest arbitration provisions, but this notion of quick elections warrants further examination. We offer the following general observation, in no particular order:

 

1. Imagine if the President of the United States had the power to just announce on any given day that there would be an election in five days and that the people would be bound by the results for the next four years. Citizens would be outraged because there would not be ample opportunity to learn about the candidates and examine their platforms. Under the reported EFCA compromise, a labor union would be able to choose the date on which the petition is filed after collecting signed authorization cards from just 30% of the workforce. In the words of Nathan Newman, Policy Director for Progressive States Network: “Union secretly collects cards, announces them and calls a snap election for five days later.”  Up to 70% of the workforce would have to make a decision within five days whether to give a labor organization they may never even have heard of the right to become their exclusive workplace representative. The interest arbitration provisions of EFCA would likely forbid any decertification for at least two years.

2. U.S. employment law typically encourages providing employees with information about their rights. Our friend Dan Schwartz at Connecticut Employment Law Blog has been reporting on the Equal Employment Opportunity Commission’s recent guidance on separation and severance agreements. In that guidance, the EEOC notes that the validity of a waiver of rights under anti-discrimination laws will turn on:

• whether [an agreement] was written in a manner that was clear and specific enough for the employee to understand based on his education and business experience;
• whether it was induced by fraud, duress, undue influence, or other improper conduct by the employer;
• whether the employee had enough time to read and think about the advantages and disadvantages of the agreement before signing it; [and]
• whether the employee consulted with an attorney or was encouraged or discouraged by the employer from doing so.

In fact, for a waiver of age discrimination claims to be valid, the employee must be given at  least twenty-one days to consider the agreement (or at least forty-five days in the case of an exit incentive or other group termination program) and then must be given seven days within which to revoke the agreement after signing it. Does it really make sense to force an employee to decide whether to waive the right to self-representation within five days?

3. While EFCA proponents would like the public to believe that employers create interminable delays in union elections, the truth is that in 2008, the National Labor Relations Board conducted initial elections in union representation elections in a median of thirty-eight days from the filing of the petition.   95.1% of all initial elections were conducted within fifty-six days of the filing of the petition. While there may be cases of abuse by some employers, we note that few governmental agencies operate with this level of efficiency. Current NLRB policy is to conduct elections within forty-two days of petition-filing. During that time period, the parties discuss, and litigate, if necessary, the scope of the eligible voting unit. This discussion period is important in order to avoid litigation. In 2008, 91.8% of all elections were conducted pursuant to election agreements reached without the need for litigation. In a five or ten day election cycle, all issues regarding the appropriate bargaining unit would have to be resolved after the election. This would likely increase the instances of litigation, as the party behind in the vote count would have no incentive to compromise.  It would create uncertainty in the workforce for a considerable amount of time after an election. And it would be a tremendous waste of government resources because the agency would likely have to invalidate numerous elections conducted in inappropriate units. 

Of course, the reported expedited election proposal is not really about giving workers the opportunity to make informed choices or to avoid litigation. It is, as Mr. Newman admits, about giving unions an opportunity to increase their membership though ambush and silencing opposing views.

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More following Friday's New York Times report that Senate Dems are considering dropping card-check from EFCA, but retaining the troubling mandatory interest arbitration provision. 

At Commentary, Jennifer Rubin continues her coverage of EFCA developments, expressing skepticism that any such "compromise" would fly: 

If there is such a deal, those Red state Democrats will be back on the hot seat. With unemployment heading for double-digits, will they vote for “card check lite”? So long as Big Labor is proposing that government-appointed arbitrators would have the power to set terms and conditions of employment for first labor agreements and that employers’ right to control their private property be sacrificed, you can expect a battle royale, including a filibuster from opponents.

Following up, at Slate, Mickey Kaus hits the nail on the head, laying out a critique of interest arbitration we included in our earlier white paper on EFCA:

Opponents may need to come up with a new name for the bill (though "card check" was working pretty well for them). How about "federal pay determination"?  Keep in mind that not only does the apparent "compromise" propose abandoning the hoary idea that wages should be set in the marketplace, it also abandons the New Deal's substitute idea that wages should be set in labor contest where unions threaten to use their strike power and management threatens to survive a strike. Unions seem to have given up strikes. Instead they want to authorize an official--maybe even an actual federal bureaucrat--to simply swoop down and impose what would undoubtedly be a wage increase. That's more akin to FDR's notorious, failed National Recovery Act--except the NRA at least let industries set their own rigid wage scales.  ...

Note also that the arbitration provisions give now-unorganized workers a new, powerful incentive to unionize: Vote for the union, wait a few months, and an arbitrator will fly in and give you a raise. No strike. No fuss. No muss.

Kaus includes a link to his April piece wherein he recommended that business and other opponents begin to think of their own elements for inclusion in any labor law reform bill.  Well worth repeated reads now.

Finally, at NAM's Shopfloor.org, Carter Wood articulates an interesting possibility:

Here’s a theory, admittedly paranoid and probably giving labor too much credit: The NYT story represents a two-part jujitsu strategy by labor. Labor claims outrage at this “compromise,” but the removal of card check prompts business to emphasize how toxic the binding arbitration provisions are. THEN, labor agrees to drop binding arbitration too, leaving business sputtering about how the remaining legislation is still bad but struggling to articulate why. With business politically neutered, the Senate passes a bill with ambush elections, a gag on employer involvement in the election process, and increased penalties. Unions still wind up with a new ability to intimidate employees into joining unions and an election process slanted toward labor.

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Was a New York Times report yesterday about the demise of card check -- Section 2 of the Employee Free Choice Act -- entirely accurate, premature or something different altogether?

At the TAPPED blog, Tim Fernholz of progressive journal The American Prospect asks:

As an inside-baseball side note, I'm interested in why Steve Greenhouse, the Times labor reporter, went with this story now. There hasn't been an official announcement, and Harkin's press secretary wouldn't confirm it, and those same half-dozen labor-friendly senators have been talking about jettisoning card check for months. What was the decision point?

This has led some -- including David French of the International Franchise Association and Rob Green of the National Retailers Federation --  to speculate whether this "leak" to a veteran labor relations reporter at the Times truly indicates surrender on the issue of card check -- or is rather a "trial balloon" or similar political strategic ploy.   Sam Stein of The Huffington Post notes:

The process was supposed to go on in secret, but discussion were leaked to the Times on Thursday. An anonymous official with the AFL-CIO, was quoted in the piece prompting speculation that the union federation was responsible for the leak.  

Regardless of the current status of this provision in the bill, SEIU President Andy Stern has made clear in a statement that labor expects a litmus test vote on card check before 2010 elections: 

"As we have said from day one, majority sign-up is the best way for workers to have the right to choose a voice at their workplace. The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority sign-up provision in the final bill or by amendment in both houses of Congress."

 

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Today's New York Times reports that moderate Democrats have agreed to a "compromise" on the Employee Free Choice Act that they believe would garner the sixty votes needed to overcome a filibuster. The compromise would reportedly remove the card-check requirement from the bill and replace it with a requirement that elections be conducted within five to ten days after the NLRB receives a petition.

There is no word yet on when the revised measure would be formally considered, though the Times indicated that several other changes are still under consideration. Those changes include some form of union access to employer facilities and a ban on mandatory campaign meetings by employers.  Compulsory interest arbitration apparently would remain in the bill.

Senator Blanche Lincoln (D-AR) and Senator Arlen Specter (D-PA) are said to support the compromise language. This compromise is not likely to be welcomed by the business community. But it also seems to create numerous practical problems.  For example, any challenges to the propriety of a union petition would have to be resolved after employees vote.  This is likely to lead to an increase in such challenges and a great deal of uncertainty among workers.  Additionally, the compromise would require a massive overhaul of current NLRB procedures and staffing to accommodate the flurry of activity that must occur prior to an election being held. 

More to follow here (and via our Twitter feed) as this story develops.

Others following the story this morning:

• "Card Check: NYT Reports 'Compromise', i.e., Disguised Card Check" -- NAM's ShopFloor.org
• "AFL: Dropping Card Check is 'Normal Process'" -- Politico

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The current issue of Newsweek magazine contains a strongly titled opinion piece, "Unions: We're Better Off Without Them."  The author, Kevin Kelly, C.E.O. of Emerald Packaging in Union City, California. recounts his experiences with two "exhausting, deeply distracting" union representation campaigns.  He lays out in sensible, composed terms why many small business owners might prefer to operate without a union representing their employees, and he expresses his concerns about the evolving regulatory environment under the Obama administration in this regard.

Midway through the article, however, Mr. Kelly subtly shifts gears, and articulates sympathy for the most common arguments in support of EFCA:

Others are taking a more activist approach. One small business person wrote to his senator urging her to vote against the legislation, or at least amend it so that some sort of election period is preserved. "My argument is that the company should have at least some period to make its case," he says. Like many businesspeople, he worries that a union organizer might bully an employee into signing a card. I can't help but feel that prevention is the better route though. When, not if, a bill passes, I'd rather be a less susceptible target thanks to good employee relations.

Years ago that union drive certainly woke me up. Almost overnight we quickly overhauled our employee relations. We put a pay scale in place so that raises occurred in a timely manner and not just at the whim of a manager. We hired a human resource manager to handle day-to-day employee issues, tackling problems like reimbursements for health care costs. I began to meet regularly with employees, including periodic meals with each of our three shifts. These meetings often last two hours—or more—as employee's list ways they think the company could be improved, often offering ideas to boost productivity or quality.

I must confess, unlike many businesspeople, I do have a soft spot for the spirit of EFCA. While I can't agree with doing away with elections, I do accept that six weeks is far too long. If a company can't make its case in three weeks, then it likely deserves the union it gets. Six weeks gives employers too much time to wear employees down. Forcing workers to sit through meeting after meeting, bashing the union, hinting that the company might move or close if the union wins, probably is the corporate equivalent of the fear many businesspeople carry that union organizers might manhandle our employees into signing cards.

There is nothing inconsistent in Mr. Kelly's assertions here and his objection to EFCA, or his desire to operate union-free.  Indeed, many of his insights should be extremely helpful to like-minded small business owners. 

One might also read the last few paragraphs, however, and ask what special insight Mr. Kelly might have into the current efforts underway to make EFCA more palatable to 60 Senators.  Many of the positions referenced here -- preservation of the secret ballot, quicker elections, restricting employer meetings -- are elements frequently discussed in connection with possible substitute labor law reforms. 

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Al Franken appears set to be sworn in as U.S. Senator on Tuesday, July 7.  EFCA steward, Sen. Tom Harkin (D-IA) said last month that he was waiting on Franken's seating to introduce the "compromise" version of the bill that he has been working on with Democrats and organized labor.  That has led many to speculate that a revised EFCA may be brought to the Senate floor in the next week or so.  Politico notes today:

Sen. Tom Harkin (D-Iowa), sponsor of the labor-backed Employee Free Choice Act, has been telling union leaders that Franken’s presence could accelerate the push to create a compromise bill more quickly than Reid’s 2010 timeline, according to people familiar with the situation.

Still, as we noted last week, the Politico piece also identifies numerous hurdles which remain for any Democratic legislative priority, including EFCA:

Democrats are short two ailing members — Sens. Robert Byrd (D-W.Va.) and Ted Kennedy (D-Mass.) — two legislative titans who simply can’t be counted on to show up for any given vote at this point in their lives.

Then there are a handful of members on Reid’s right flank — Nebraska’s Ben Nelson, Louisiana’s Mary Landrieu, Indiana’s Evan Bayh and wild-card independent Joe Lieberman of Connecticut — who tend to be loyal but could buck him on health care reform or climate change legislation.

Add endangered 2010 candidates Blanche Lincoln (D-Ark.) and Michael Bennet (D-Colo.), and the number of rock-solid cloture votes in Reid’s pocket drops to between 52 and 54.

The National Electrical Manufacturers Association (NEMA) has identified a number of Senators who have either expressed opposition to, or concern with, EFCA in its current form, and asked its membership to reach out to them:

While it is important that every Member of Congress hear from manufacturers (and distributors) on this important issue, it is critical to contact the following Senators during the July 4th recess period to urge them to oppose all votes (including cloture) on EFCA in any form:

Senator Evan Bayh (D-IN), phone 202-224-5623, fax 202-228-1377
Senator Michael Bennet (D-CO) phone 202-224-5852, fax 202-228-5036
Senator Kay Hagan (D-NC) phone 202-224-6342, fax 202-228-2563
Senator Mary Landrieu(D-LA) phone 202-224-5824, fax 202-224-9735
Senator Blanche Lincoln (D-AR) phone 202-224-4843, fax 202-228-1371
Senator Ben Nelson (D-NE) phone 202-224-6551, fax 202-228-0012
Senator Mark Pryor (D-AR) phone 202-224-2353, fax 202-228-0908
Senator Arlen Specter (D-PA) phone 202-224-4254, fax 202-228-1229
Senator Mark Warner (D-VA) phone 202-224-2023, fax 202-224-6295
Senator Jim Webb (D-VA) phone 202-224-4024, fax 202-228-6363

Regrettably, only Specter and Pryor have been reported to be involved in Sen. Harkin's "compromise" discussions.  Since those conversations also appear to involve the AFL-CIO, but not a single member of the business community or Republican caucus, one might seriously contest the use of the term "compromise" to describe what is truly going on.  Hopefully, the American public will at least have the opportunity to hear and consider a sober, reflective debate about the respective positive and negative elements of any proposed labor reform bill.

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#EFCA  #efcafail

By some accounts, the most significant revision of U.S. labor policy in decades may be passed by the Senate after a backroom deal, with little, if any, formal debate.  

We’ve been blogging about EFCA since early 2007, and, while we make no pretense about our management bias, we’ve tried to maintain a civil tone.   We’ve reported developments and offerred insight, but we’ve tried not to be inflammatory. Enough people on both sides of the issue are working that angle. Pardon us then for this temporary departure from our usual form.

For months now, it has been assumed that even with sixty members in the Democratic caucus, the Employee Free Choice Act was doomed to fail in its original form.  The word from Washington has been that Sen. Tom Harkin (D-IA), Sen. Arlen Specter (D-PA), and others have been discussing "compromises" to the original bill.  Details about those discussions have been hard to come by.   Now that the sixtieth caucus member is about to be seated, we hear that a compromise is almost complete, and that the new bill may pass the Senate within a few days of being introduced. 

Does no one in Washington see the irony in a backroom deal on workplace democracy? Collective bargaining is supposed to be about giving workers a voice in things that affect them through representatives of their own choosing. Who is participating in these closed door meetings? How are the Senators ascertaining that the voices they hear are the true voices of workers? And what about the business community? Shouldn’t they have a voice in this legislation, which may or may not result in wages and benefits being dictated by an arbitrator? The Senate has long been hailed as the most deliberative legislative chamber. It should conduct those deliberations openly – especially on issues that purport to address workplace democracy.

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TPM and NPR (and EFCA Report) broke the news over a month ago.  But today, with the Al Franken development front and center, Rep. Joe Sestak (D-PA) appears to have made it official.  The Congressman will run against Senator Arlen Specter (D-PA) in the Pennsylvania Democratic Primary for Senate in 2010.  Many have been speculating that Sestak's support among those on Specter's left flank might put pressure on Specter to either (a) express more support for EFCA in its current form, or (b) bring forth an alternative palatable to organized labor in short order.

Many forget, however, that Rep. Sestak already has introduced an alternative to EFCA -- the National Labor Relations Modernization Act (H.R. 1355).  Introduced days before Rep. George Miller (D-CA) and Sen. Tom Harkin (D-IA) introduced EFCA in the 111th Congress, Sestak's bill would

1. provide for mandatory arbitration following a 120-day mediation period, if after an initial 120 days of bargaining failed to result in an agreement;
2. increase penalties against employers (similarly to EFCA's proposed changes); and
3. require an employer to provide equal access to the employees to union organizers once an election is ordered.

With talk of an EFCA "alternative" possibly being pushed to the Senate floor as early as next week, the timing of Sestak's "announcement" would seem directed toward impacting this issue more than most.

More coverage:

• "Are Specter's Senate Days Numbered?" -- Christian Science Monitor
• "Rep. Sestak Says He Will Challenge Specter In Pa. Senate Primary" -- American Spectator
• "Sestak Pulls The Trigger" -- Politico

 

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The Minneapolis Star Tribune and CBS report that the Minnesota Supreme Court has affirmed the trial court decision declaring Al Franken (D) the winner of last year's Senate election:

"We affirm the decision of the trial court that Al Franken received the highest number of votes legally cast" in the election, the decision states. The justices also explicitly ruled that Franken is "entitled" under Minnesota law to receive the certificate of election as senator.

The judges stated that Coleman has "not shown that the trial court's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion." They ruled unanimously for Franken, 5-0.

Subsequent reports note that Coleman has conceded.  Once Franken is seated, the Democrats will hold 58 seats in the Senate, and two independents, Sens. Joe Lieberman (I-CT) and Bernie Sanders (I-VT), often caucus with them on labor issues.  It has long been speculated that this development would lead to a resurrection of efforts on behalf of the Employee Free Choice Act. 

Expect a renewed wave of enthusiasm by the bill's supporters in the days to come.  Still, once Franken is seated as the second Senator from Minnesota, EFCA in its current form faces an uphill battle.   Many of the 60 votes possibly controlled by the Democrats have openly questioned the bill's current provisions -- Sens. Lincoln, Feinstein, and Bennet to name but a few.  Senator Arlen Specter (D-PA), whose recent famous party switch put the Democrats this close to the prospect of cloture on any given measure, has consistently criticized EFCA as currently drafted.  On April 28 of this year, he reiterated that stance:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees [sic] Free Choice (Card Check) will not change.

What this likely means is that the various parties pursuing alternative labor law reform measures will now step up those efforts.  Among these underway:

• Senator Specter has previously laid out a number of possible elements he would explore, many of which we reviewed in our early 2009 white paper.
• Sen. Tom Harkin (D-IA) is said to have been pursuing "compromise" legislation providing for secret ballot elections within 21 days, and a greater emphasis on mediation in collective-bargaining.
• Sens. Feinstein and Specter have been said to have been discussing some form of mail-balloting as a selection method.
• The Committee For a Level Playing Field has proposed a comprehensive set of "principles for reform" incorporating stricter penalties, dates certain for elections, and union access to employees during campaigns, while preserving secret ballot elections and collective bargaining.

More coverage of today's news:

• "Meet the Dems' 60th Vote...Maybe" -- Atlanta Journal Constitution
• "After Eight Month Fight, Franken to be Seated" -- The Hill
• "Norm Coleman concedes Senate race to Al Franken" -- Politico
• "AFL-CIO: Franken Crucial for EFCA Passage" -- TPMDC

 

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At Town Hall, Carl Horowitz examines the ongoing corporate campaign by Labor and its allies against Starbucks. Horowitz generally notes the irony in the Far Left-Labor alliance continually hammering the coffee giant, which has always "sought to be a hybrid of profit-seeking and social responsibility."  Among other elements of this campaign, Horowitz notes recent developments following Starbucks' announcement just months ago, that it was forming the "Committee for a Level Playing Field", along with CostCo and Whole Foods to explore alternatives to EFCA:

EFCA, as many are aware, has stalled. In 2007, the House passed the measure, but Senate Republicans successfully blocked it. The bill, not unpredictably, has been re-introduced in the new Congress; President Obama has vowed to sign it. Yet even with wide Democratic majorities in the House and Senate this time, the measure remains highly vulnerable to filibuster. A number of Senate Democrats such as Blanche Lincoln (Ark.), Claire McCaskill (Mo.), and party convert Arlen Specter (Pa.) believe the Employee Free Choice Act is ill-suited to deal with the current recession, if not necessarily wrong in principle. Union leaders such as Service Employees President Andrew Stern have expressed pessimism over the prospects for passage.

Here’s where the Seattle-based Starbucks fits into the picture. This March, Starbucks’ Howard Schultz, Whole Foods’ John Mackey and Costco’s James Sinegal announced the formation of an ad hoc group, the Committee for a Level Playing Field for Union Elections. The purpose is to create a Third Way that would protect union organizing rights while retaining the secret ballot. The project would guarantee a fixed time period in which to hold a secret-ballot election and increase penalties upon employers and unions who violate the law.

Many activists on the Left are enraged at this seeming sellout, which in fact is more tilted toward union interests than it looks. It’s another phase in a continuing battle against Starbucks.

His conclusion?   Starbucks should "smell the coffee and fight back."

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Both Sens. Arlen Specter (D-PA) and Dianne Feinstein (D-CA) have reportedly been considering a "mail-in" or "postcard" alternative to EFCA's card-check recognition scheme.  In the Oregonian, Coalition for a Democratic Workplace Chairman Brian Worth responds to an earlier piece in the paper regarding this alternative:

'Postcard check' scheme
 

There is no comparison between Oregon early voting and congressional efforts to find alternatives to the wildly unpopular card check scheme ("Mail voting proposed in union 'card check' fight," June 4).

The most important distinction is that there's no ballot involved in the mail-in
card proposal. It merely substitutes the discredited card check ruse with a "postcard check" -- a new and equally flawed variation. The postcard check proposal increases the power of the professional union organizer, eviscerates secret ballot elections and further weakens workers' privacy rights.

Like regular card check, mail-in cards do not provide the guaranteed security and privacy of a voting booth, thus inviting fraud, intimidation and coercion
with more visits to workers' homes by union organizers.

This latest attempt to fix what is wrong with the Employee Free Choice Act opens the door to abuse through ACORN-style campaigning that is prone to fraud and increases the possibility of worker intimidation and coercion. As National Labor Relations Board career staff noted, mail-in cards increase the "potential for interference by any party."

You can't fix card check by simply adding postage and this alternative further expands the attack on worker privacy from the workplace to the home.

BRIAN WORTH
Chairman
Coalition for a Democratic Workplace
Washington, DC
 

Hat Tip:  ShopFloor.org

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The Wall Street Journal reports that Senator Arlen Specter (D-PA) is testing the waters by suggesting two possible alternative components to the Employee Free Choice Act:

Under a potential compromise on the contentious subject of secret-ballot elections, workers could mail in ballots during union elections instead of the bill's current provision in which workers would sign cards collected by union organizers. The compromise approach would theoretically preserve privacy and reduce opportunities for coercion by union organizers and employers.

The second change would restrict the use of arbitrators in contract negotiations to situations in which the two sides fail to reach agreement on their last and best offer. The current version of the bill calls for automatic arbitration after 120 days.

To be sure, these two proposals differ from Sections 2 and 3 of the current version of EFCA.  Yet they still suffer from the same significant flaws as the current bill.  Perhaps that is why business interests were so quick to react:

"We continue to stand in support of the right of workers to have a secret ballot and the right to vote on contracts without interference from government bureaucrats," said Katie Packer, executive director of the Workforce Fairness Institute, a business-backed nonprofit that opposes the Employee Free Choice Act,

Senator Specter's "mail-in" proposal is curious, as it is something that was not included among the many alternative elements suggested by the Senator in his March 24th statement on the Senate floor.  Moreover, earlier reports had Senator Specter's colleague Sen. Tom Harkin (D-IA) pushing an expedited time-frame for secret ballot elections as a possible alternative to card-check.

More details are certain to emerge in the coming days, as Democrats continue to try to find some common ground on an alternative bill capable of gathering 60 votes in the Senate.

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Earlier today, USA Today reported that President Obama spoke at a New Mexico town hall meeting about the Employee Free Choice Act.  USA Today's coverage suggested that the President expressed reservations regarding the card-check provisions.  Now that others are reporting his comments more fully, it seems that the President, in fact, reiterated his support for the main idea behind EFCA -- facilitating union organizing -- but also acknowledged the practical reality that the bill probably cannot be passed in its current form.  He also presented, without endorsing, the "other side of the argument" on behalf of the opposition.  The official transcript of his remarks, via KOAT:

THE PRESIDENT: Okay, let me talk about the Employee Free Choice Act. One of the things that I believe in -- and if you look at our history, I think it bears this out -- even if you're not a member of a union, you owe something to unions, because -- (applause) -- because a lot of the things that you take for granted as an employee of a company -- the idea of overtime and minimum wage and benefits -- a whole host of things that you, even if you're not a member of a union, now take for granted, that happened because unions fought and helped to make employers more accountable. (Applause.)

The problem that we've seen is that union membership has declined significantly over the last 30 years. And so the question is, why is that? Now, part of it, the economy has changed and the culture has changed, and there hasn't been a very friendly politics in Washington when it comes to union membership. But part of it just has to do with the fact that the scales have been tilted to make it really hard to form a union. So a lot of companies, because they want maximum flexibility, they would rather spend a lot of money on consultants and lawyers to prevent a union from forming than they would just going ahead and having the union and then trying to work with -- and collectively -- allow workers to collectively bargain.

So there's a bill called the Employee Free Choice Act that would try to even out the playing field. And what it would essentially say is, is that if a majority of workers at a company want a union then they can get a union without delay -- and some of the monkey business that's done right now to prevent them from having a union.

Now, I want to give the other side of the argument. Businesses object to some of the provisions in the Employee Free Choice Act, because one of the things that's in there is something called card check, where rather than have a secret ballot and organize a big election, you could simply have enough employees, a majority of employees, check a card and that would then form the union. And the employers argue we need to have a secret ballot.

I think that there may be areas of compromise to get this bill done. I'm supportive of it, but there aren't enough votes right now in the Senate to get it passed. And what I think we have to do is to find ways in which the core idea of the Employee Free Choice Act is preserved, which is how do we make it easier for people who want to form a union to at least get a vote and have a even playing field -- how do we do that, but at the same time get enough votes to pass the bill. That's what we're working on right now. I think it's going to have a chance of passage, but there's still more work to be done. (Applause.)

This reflects a somewhat pragmatic approach.  Special interests have wasted no time in excerpting and splicing the President's words to ignore his reference to "compromise" efforts, and to exaggerate his support for the current bill.  See this SEIU mash-up already up on YouTube and compare it to the official transcript above:

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Earlier this week, the Washington Post's editorial page criticized the business community for a perceived intransigence on EFCA and the Senate effort underway to craft a "compromise" proposal.  Now it seems there are special interests on the other side of the debate equally dug in on their position.

Union lobbying organization American Rights At Work has launched an ad pressuring new Democrat Sen. Arlen Specter (D-PA) to support EFCA instead of exploring alternative avenues to reform American labor law.  The ad "Where will Specter stand?" will run on cable and broadcast television stations in Pennsylvania throughout May.

Senator Specter, of course, was instrumental in generating the discussions now underway in the Senate.  His public announcement in late March that he would not vote for cloture opened the door -- and some would suggest provided political cover -- for Democrats like Sens. Blanche Lincoln (D-AR), Dianne Feinstein (D-CA) and others to openly  acknowledge their discomfort with the bill as drafted.  Contrary to the ad's suggestion, Senator Specter's previous "support" for EFCA was never absolute -- indeed, it was highly qualified.  On the Senate floor in 2007, he declared his belief that EFCA was a seriously flawed proposal, but that labor law reform was necessary.  He advocated a more thorough debate and a bipartisan, analytical approach to that reform in his 2007 floor speech, his 2008 Harvard Journal on Legislation Policy Essay, and in the Senate in late March.

Now that he has switched parties and has reached out to EFCA's supporters to begin exploring reform by alternative routes, it seems groups like ARAW want him to understand that anything short of full support for EFCA in its current form is unacceptable.

More:

• "Labor Group Targets Specter in Card-Check Ad" -- WSJ Washington Wire blog
• "Unions Air First Ad Hitting Democrat Arlen Specter" -- The Plum Line blog
• "Pro-Labor Group Ramping Up Offensive On Specter On EFCA" -- The Hill
• "Labor Pressuring Specter Gently" -- Politico
• "Card Check: Welcome. Welcome. Now Dance." -- ShopFloor.org

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At the National Review Online, former Board Member Peter Kirsanow joins the chorus of voices taking issue with today's Washington Post editorial.  In "EFCA Compromise Nonsense," Kirsanow asserts:

First, the idea that the EFCA amendments presently being floated constitute a "compromise" is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The "compromise" is merely a recognition among Democrats that they can't muster the needed support for EFCA from within even their own ranks.

 

 

Second, the allegedly "unfair barriers" to unionization that the WaPo laments were in place 50 years ago when unions represented 35% of the private-sector workforce. They were in place 30 years ago when 24% of the workforce was unionized. And they're essentially the same today when only 7.5% of the workforce is unionized. Did the WaPo run an editorial decrying the unfairness of the system when unions were in ascendance?

 

   *    *    *

 

The "quickie election"/equal access "compromise" is not a response to an unfairly tilted playing field. It's an attempt to salvage some aspects of a seriously flawed bill that may resuscitate the fortunes of labor unions but does little, if anything, to protect employees' rights or the ability of American employers to compete.

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Earlier today, we included a link to a Washington Post editorial which criticized business interests for remaining opposed to talk of an EFCA "compromise":

... the coalition failed to acknowledge any flaw in the existing process -- except to the extent that it suggested, falsely, that the current playing field is tilted in favor of unions. That hardly sounds like bargaining in good faith.

NAM was quick to respond with a few thoughts, and now, James Sherk of the Heritage Foundation has posted a thorough explanation of the criticized position that current labor law is, in fact, skewed in favor of union organizers.  As support, Sherk cites:

• Unions control the election timing, so workers do not vote until union support peaks.
• Employers rarely learn of the organizing drive until unions ask for an election, so unions have months to build support while employers have just one month to present the other side.
• Employers may not ask employees if they support the union. Unions may ask employees how they will vote and focus their efforts on persuading undecided workers.
• The law severely restricts employer speech while allowing unions to say almost anything they want. Employers may not promise to improve working conditions if workers vote down the union. The union may promise anything it wants, even if it knows it cannot keep those promises.
• Employers may not even ask workers what problems they have in the workplace and why they want a union. Unions can ask workers about anything they want.
• Unions may not campaign while workers are on company property and on company time. However the company must give unions the addresses of every worker and unions can visit workers at their homes. Employers are legally prohibited from visiting workers homes to campaign.

His conclusion:

The only way for unions to organize most companies is if workers never get the chance to hear the other side and learn that, empty union promises aside, organizing won’t actually do much to help them. The goal of the misnamed “Employee Free Choice Act” is to force workers to publicly commit to a union before ever getting to hear the other side. That’s great for union organizing, but not for workers.

These card-check “compromises” have the same goal. Snap elections are intended to deprive workers of an informed choice. They would force workers to vote after months of campaigning by the union but with only a few weeks to hear the management side. How is that fair, and how does that help workers? Mandatory union access to company premises at staff meetings is intended to deter companies from discussing the downsides of organizing. If an employer doesn’t want the union disrupting their workplace they cannot talk to their employees about why unionizing might not be everything the organizers have promised.

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The Wall Street Journal reports that Senators are busy working on a compromise version of EFCA that would drop the bill's card-check provision in favor of an expedited secret ballot election process.  The report indicates:

Compromise talks are being led by Sen. Tom Harkin (D., Iowa), the bill's lead sponsor in the Senate. Kate Cyrul, a spokeswoman for Mr. Harkin, declined to comment on details of the compromise being discussed. But she said the senator "remains confident that we can address these issues without compromising the core provisions of the bill."

Among the changes being discussed are dropping the card-signing provision and setting a 21-day deadline for an election to be held -- about the half the median of 40 days that union elections currently take, according to people familiar with the talks. An aide for Mr. Specter said the senator is "generally supportive" of the idea that an election must be held within 21 days if the employer wants a secret ballot.

This is consistent with reports from late March which had Sen. Harkin approaching moderate Republicans to attempt to reach consensus on an approach to labor law reform.  A shortened election period is an alternative element about which we speculated in our February 2009 white paper, "The Employee Free Choice Act in the 111th Congress".

According to this new WSJ report, however, mandatory interest arbitration may still be on the table in some form:

Another compromise relates to contract negotiations. The bill currently calls for arbitrators to set contracts if an employer and a new union fail to agree within 120 days. Under a compromise, mediators -- rather than arbitrators -- would play a bigger role in helping the sides negotiate a contract. Arbitrators could still be used to rule on certain contract provisions after both sides failed to agree.

Unions of course will remain insistent that mandatory arbitration remain in the final bill, as it provides them a safety net for failure to obtain a contract otherwise.  While much of the attention devoted so far to EFCA has been critical of the bill's card-check provisions, commentators are starting to point out the flaws of the arbitration provision as well.  But beyond the practical objections to government arbitrators setting wages, benefits and terms of employment for private employers, the mandatory interest arbitration provision is entirely antithetical to the very essence of American labor law. 

The collective bargaining process was always intended as a balancing between the parties in a free economic market.  At all times during the process, the employees and/or their union representative retain the right to engage in economic pressure – to withhold their labor by means of a strike – in an effort to persuade the employer to modify its positions. But voluntary agreement has always been the most fundamental component of collective bargaining. Indeed, Samuel Gompers, founder of the American Federation of Labor and a father of the American labor movement, said: “The whole gospel of the labor movement is summed up in one phrase... freedom of contract -- organized labor not only accepts, but, insists upon, equality of rights and of freedom.”  EFCA's interest arbitration provisions are a radical and inappropriate departure from those principles.

No word in the WSJ piece on whether Sen. Harkin is including EFCA's remedial provisions and increased penalties against employers in his compromise discussions as well.

More coverage and comment:

• "Tom Harkin aims for Arlen Specter EFCA Compromise" -- Politico
• "Specter Eyes Support for Employee Free Choice Bill" -- People's Weekly World
• "SEIU Talks EFCA With Specter -- Says It's 'Critical' Issue" -- TPMDC

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Perhaps providing EFCA's critics a prime example of the type of deception card-check organizing can subject workers to, The Hill reports that American Rights at Work is "using tags on Twitter to con opponents of the legislation into signing a petition supporting it."   According to The Hill:

The misleading campaign first showed up on Saturday, when EFCANow posted to its Twitter account: "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition," followed by a website.

Since Saturday, nearly a dozen entries into the group's Twitter feed mention Gingrich, the general chairman of American Solutions, and Anuzis, who heads American Solutions' anti-EFCA campaign.

Elsewhere, the article notes:

Twitter has become a popular platform for groups on both sides of EFCA — also called card-check — debate. The Service Employees International Union (SEIU), AFL-CIO and Communications Workers of America are all using the site to send brief messages to supporters, while those opposed to the bill are rallying their troops as well.

While not mentioned in The Hill piece, one can follow all the updates featured here on EFCA Report via our Twitter feed. 

A final interesting political tidbit via The Hill, but apparently reported initially via Twitter:

SEIU chief Andy Stern on Sunday used his Twitter account to call Rep. Joe Sestak (D-Pa.) "impressive" and to reveal that he would meet with Sestak on Monday.

Sestak is considering challenging Sen. Arlen Specter (D-Pa.), who bolted the Republican Party last week, in next year's Democratic primary. Though unions have held out hope that the new Democrat will change his mind, Specter has said he will not vote for EFCA. Sestak is an original co-sponsor of the bill.

Of course, Rep. Sestak (D-PA) is also one of the first to have introduced an alternative to EFCA.  On March 5th, with little fanfare or attention, he introduced the National Labor Relations Modernization Act (H.R. 1355).  This law would:

1. provide for mandatory arbitration following a 120-day mediation period, if after an initial 120 days of bargaining failed to result in an agreement;
2. increase penalties against employers (similarly to EFCA's proposed changes); and
3. require an employer to provide equal access to the employees to union organizers once an election is ordered.

So, it would seem both these men have at times supported EFCA, and also recognized the potential for some alternative labor law reform proposals.  It should make for interesting primary season discourse, to say the least.

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Jennifer Rubin asks at Commentary Magazine's blog whether the groups that opposed EFCA are as well prepared to confront a "lite" version of the bill offered as compromise.  Her excellent post suggests these strategic possibilities:

... There are a couple avenues which they haven’t yet explored, in large part because they were able to beat back EFCA by focusing on the prospect of losing the secret ballot and the huge problems (legal and economic ) with mandatory arbitration.

The first is to back bipartisan reform. Enshrine in statute and enforce the Bush era measures combating union corruption and requiring financial disclosure, make proposed fines for unfair labor practices apply to both unions and employers, and ensure that whatever time limits on elections and access to employer premises (or email) which are required for employers also apply to union decertification elections and union premises (or email), respectively. That might either scare off Big Labor or, if not, maintain the traditional balance between labor and management that has been a hallmark of federal labor law for decades.

The second is to go after the premise that any of this is needed at all. EFCA has been a solution in search of a problem, resting on the questionable notion that unions are losing “market share” not because of worldwide trends against unionization or  because  of younger worker’s lack of affinity for unions but because of nefarious actions by employers. This requires some sober discussion and fact-finding hearings, which may not be in the offing in a Democratic-controlled Congress where the hearings are likely to be stacked heavily in favor of pro-union witnesses. Nevertheless, business groups would be wise to start educating lawmakers and the public if they want to burst the myth that the solution to Big Labor’s woes is more federal legislation

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Longtime Republican Senator Arlen Specter (PA) announced today that he will run for re-election in 2010 as a Democrat.  Per the New York Times:

Mr. Specter, the long-time Republican party maverick, faced a difficult re-election next year, against conservative opponent Pat Toomey, the former Pennsylvania representative.

If Al Franken prevails in his ongoing court case in Minnesota and Mr. Specter begins caucusing with Democrats, Democrats would have 60 votes and the ability to deny Republicans the chance to stall legislation. Mr. Specter was one of only three Republicans to support President Obama’s economic recovery legislation.

Regular readers of this blog, and other followers of the Employee Free Choice Act, know well Senator Specter's critical role in the ongoing evolution of the proposed legislation.  In the last Congress, Specter was the only Republican to cross the aisle and vote for cloture on H.R. 800.  In his floor speech at the time, he outlined a number of his concerns about the current state of American labor law.  Soon after, in the summer of 2008, Senator Specter co-authored a Policy Essay in the Harvard Journal of Legislation, criticizing EFCA, but reiterating the need for substantive labor law reform.  Then, on March 24 of this year, Senator Specter took to the floor to announce that he was withdrawing his support for the bill.  In so doing, the Senator once again emphasized his opinion that significant alternative labor law reform was necessary:

If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.

He suggested a number of elements that might be considered in such an effort, and encouraged all parties to approach the issue seriously and constructively. 

So, what now for EFCA?   Senator Spector's March 24th announcement was seen as a roadblock to the 60 votes needed for cloture.  In concluding his statement issued today, Specter proclaimed:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees [sic] Free Choice (Card Check) will not change.

At first blush, it would seem that this move -- forseen by some for a while -- might not have immediate impact on EFCA's prospects.  Certainly there are enough other Democrats -- Sens. Lincoln, Feinstein, and Bennet to name a few -- who have expressed opposition to the bill following Specter's March 24th announcement.  And Senator Specter's critiques of the bill as currently drafted appear principled and longstanding.  But he also left the door open in his March 24th statement.  To be sure, today's announcement may have more impact on EFCA's prospects in the 112th Congress, should its proponents decide to regroup and wait.

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Roll Call today notes that organizations on both sides of the EFCA debate spent the recent congressional recess blanketing lawmakers’ districts with rallies, press ops, advertisements and phone calls.  Among those speaking out:

A coalition of minority business leaders — including the Asian American Hotel Owners Association; the National Association of Black Hotel Owners, Operators & Developers; the National Black Chamber of Commerce; the Latino Coalition; and the U.S. Hispanic Chamber of Commerce — held their own press conference Tuesday to continue lobbying against the card check bill.

“They want to come in and run your business for you and probably run it into the ground,” National Black Chamber of Commerce President Harry Alford said.

The Cleveland Plain Dealer reports that longtime EFCA advocate Sen. Sherrod Brown (D-OH) predicts revisions to the bill in the coming months:

Although Brown backs the legislation in its current form, he says it won't get enough votes for passage in the Senate now that former backers including Pennsylvania Republican Sen. Arlen Specter have withdrawn their support.

He said he expects a compromise will be reached to continue the secret-ballot elections, but require them to be conducted swiftly and handled in a way that doesn't inordinately favor businesses.

And Human Resources Executive Online carries a story regarding ongoing efforts toward the reunification of the AFL-CIO, Change to Win and the NEA into a single labor coalition:

Labor unions view the Obama administration as "representing the redefinition of the government's role," says Change to Win spokesman Greg Denier, adding that labor leaders are already uniting to work for the enactment of the Employee Free Choice Act.

 

Many believe a reunited labor movement would strengthen the unions' ability to work with the new administration and advance its agenda.  

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Three-thousand construction firms sent a letter to Congress yesterday, making clear where they stand on deliberation over the Employee Free Choice Act:

We, the more than 3,000 undersigned construction companies and related firms, are writing to express our strong opposition to the deceptively named “Employee Free Choice Act” (H.R.1409 and S.560). The key provisions in this legislation represent egregious attempts to limit the rights of employees and employers and will severely diminish the ability of our firms to succeed in our globally competitive market.

 

It is also our intention to make clear that there is no room for compromise on this piece of legislation. Our firms stand together in stating that there is nothing that can be done to make this legislation more palatable and that Congress should vote down this bill in all forms.

(Tip: ShopFloor.org)

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Perhaps getting a better read on political reality than many of their colleagues in the labor movement, SEIU President Andy Stern and Change To Win Chair Anna Burger told the WaPo's editorial board that labor may need to look for reform opportunities which do not include card-check recognition. A few of the potential elements mentioned by Mr. Stern were covered in MLA's white paper "The Employee Free Choice Act in the 111th Congress." From WaPo's 44 blog:

Speaking to The Post's editorial board, Stern noted that there are ways to try to level the playing field in union elections without giving workers a way around the secret ballot requirement, such as shortening the window before elections are held -- thus giving employers less time to pressure workers -- and stiffening penalties for employer violations.

"We are on the hunt for a solution," he said. "No matter what you do, you have to change the election process. Whether it's majority sign up or not, workers have to have a choice about having an election. The bill has to address ... fast elections, eliminating employer behavior and what happens if there are employer violations. Regardless, that needs to be done."

Mr. Stern, who is widely regarded as one of the most influential people in the labor movement, seems to recognize President Obama's lack of enthusiasm for advancing the legislative battle over EFCA at this point in time. Yet:

...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.

More:

• "Card Check: Labor Leaders Consider EFCA Compromise" -- ShopFloor.org

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At the Enlightened Despot blog, Akhbar the Great cautions people against ignoring the full import of the Employee Free Choice Act, while getting caught up in rhetorical abbreviations.  AtG would not refer to EFCA simply as "card check":

And this isn’t just a technicality. Other countries have a card check policy, but they of course don’t have EFCA on the books - it’s a proposed American law. Meanwhile, EFCA contains a lot of significant measures unrelated to card check. Indeed, card check itself is becoming increasingly irrelevant - there is simply no reason to think Democrats can put together 60 Senate votes for any bill that includes it, at least not until after the 2010 midterms.

At this point, the policy to watch is mandatory binding arbitration. Mandatory binding arbitration would require management and a newly formed union to enter a binding arbitration process for a two-year contract if the two sides are unable to come to terms on their own. The major compromise bills that have been introduced contain neither mandatory arbitration nor card check, and are about as popular with labor as Japanese car companies. Meanwhile, anti-labor types are worried that Democrats are planning to drop card check as a compromise for enacting mandatory binding arbitration.

The Truth About the EFCA blog carries a Columbus Dispatch story which it asserts highlights the dangers of card-check organizing:

An Ohio union organizer has been fired after he was caught forging documents to deduct money from public employees' wages to pay for political activity, the Service Employees International Union said yesterday.

Becky Williams, president of the SEIU District 1199, said she thinks this is an isolated incident, but the union is continuing to investigate.

More:

• The American Spectator explores the impact of EFCA on the widely ignored current multi-employer pension crisis in "A Good Time to Start Liquidating"
• ShopFloor.org criticizes American Rights at Work for demonizing American industry instead of arguing the merits of EFCA
• The American Issues Project has audio from Gov. Mitt Romney's Monday call regarding mandatory interest arbitration.
• Construction exec Brett McMahon's recent op-ed piece is reprinted in today's Washington Examiner

 

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Yesterday's Washington Post featured the future of EFCA in its "Topic A" -- a semi-regular column in which the paper asks relevant figures for their insights on a particular hot issue.  The piece begins:

When Sens. Arlen Specter and Blanche Lincoln announced their opposition to the Employee Free Choice Act, some forecast the end of labor reform. The Post asked lawmakers, labor leaders and others what's likely to happen.

WIth all due respect, anyone who believes that Sens. Specter and Lincoln announced the "end of labor reform" has not been paying much attention at all.  The filibuster seems well preserved at this moment in time.  Yet, it has been obvious to those watching EFCA over the past several years that some form of labor law reform was inevitable in this Congress, but that moderates were likely planning to use their leverage to begin a more reasoned, constructive discussion to that end.  The EFCA's more offensive provisions may or may not yet be dead, but the past few weeks have shown that there are a variety of potential alternative measures that will be cast into the debate over labor law reform.  Employers must remain involved in the discourse and be prepared for some significant changes.

The WaPo's piece highlights many of the possibilities, via the opinions of politicians, labor leaders, and scholars connected to the debate.  Read the entire piece for perspectives from:

• John Sweeney, President, AFL-CIO
• Elaine Chao, Heritage Foundation, Former Secretary of Labor
• Sen. Arlen Specter (R-PA)
• Sen. Tom Harkin (D-IA)
• Lanny J. Davis, Counsel to Level Playing Field Committee
• William B. Gould, Former Chairman, NLRB
• Larry Cohen, President, Communication Workers of America
• Professor David Brody, UC-Davis
• David Bonior, Chairman, American Rights at Work

Many of the alternative elements discussed in these pieces have been previously outlined in our white paper "The Employee Free Choice Act in the 111th Congress" and our recent guest column in Law 360, "What's Next for EFCA?"  Employers would be making a tragic mistake to assume that the developments of the last few weeks mean "the end of labor law reform." 

Quite to the contrary.

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We noted last week that Senator Michael Bennet (D-CO) had adopted a less enthusiastic approach to EFCA when discussing the issue with constituents over the current Recess.  At best, Sen. Bennet saw the bill as a potential obstacle to accomplishing other priorities.  Now, in the Huffington Post, Al Eisele is reporting that Bennet's fellow Colorado Democrat, Senator Tom Udall, is less equivocal about his opposition to the measure:

Udall begins by half-apologizing for having voted last summer for the Employee Free Choice Act, which would make it easier to unionize businesses by eliminating secret ballot voting, a decision he wants to "clarify" for the benefit of his pro-business audience.

He says he supported the measure, which passed the House but hasn't been taken up by the Senate, because he felt the National Labor Relations Board could best deal with concerns raised by the bill's opponents. "But I'm not convinced that the Employee Free Choice Act is the way to do that. Both sides have legitimate concerns," he says, while noting that there aren't enough votes to bring the bill to the Senate floor for debate and a vote. "Business and labor need to find common ground on this one," he adds. 

This, however, seems to slightly contradict what Greg Sargent reported earlier in the week at The Plum Line blog:

Udall spokesperson Tara Trujillo confirms to me that Udall will cast the first vote in favor of EFCA. “He believes it’s important to have debate on big issues,” Trujillo says.

“Mark has always said this is not a perfect bill,” she adds, “but he believes workers should not be intimidated in the workplace.” Trujillo said it was uncertain what he would do on the final vote. “We don’t know what the final bill is going to look like,” she said.

The two aren't impossible to reconcile, but there's a lot of grey areas to be nuanced here before one can know for certain which way Colorado's delegation will vote if cloture is attempted on the current bill.

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Finally, labor groups seem to be conceding that whatever labor law reform might be passed this year is unlikely to look like the Employee Free Choice Act repeatedly introduced during the past few Congresses.  Throughout the developments of the past few weeks, the AFL-CIO's Director of Legislative Strategy Bill Samuel remained insistent that card-check remain a critical part of any such effort, dismissing overtures to discuss alternative approaches.  But now, after Senators Arlen Specter (R-PA), Dianne Feinstein (D-CA) and Blanche Lincoln (D-AR) have all indicated they will not support EFCA as currently composed, it seems some in labor are also striking a more moderate tone.  From yesterday's National Journal:

Labor groups are showing a willingness to accept changes in the Employee Free Choice Act in the wake of opposition from senators considered key to passing the bill. "A bill is introduced and then Congress works through the process of committees, amendments, and debates and 99 out of 100 times the final bill is different from when it started," said Eddie Vale, a spokesman for the AFL-CIO. "We are confident that major labor law reform is going to pass in 2009." That sentiment was echoed by Josh Goldstein, a spokesman for the pro-labor American Rights at Work. "We have to let the legislative process play out; the bill has just been introduced," he said. "There are other proposals that have come up. We are fully committed to having those conversations with people who are committed to fixing the broken system."

 

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On the heels of the announcement last week that organized labor would be pressing elected officials regarding the future of EFCA during the April Congressional Recess, Senator Blanche Lincoln (D-AR) made an announcement of her own.  Confirming what many have long suspected, Sen. Lincoln announced yesterday that she would not support S. 560.  Per The Hill:

“I consider both the labor and the business communities to be my friends.  However, now that we need all hands on deck, including business and labor, to get our economy moving again, this issue is dividing us,” Lincoln said in a statement. “While I may not have been clear about my position in the past, I am stating today that I cannot support Employee Free Choice Act in its current form and I can’t support efforts to bring it to Senate consideration in its current form.”

The Senator's statement follows fellow Democrat Senator Dianne Feinstein's (D-CA) withdrawal of support, and Senator Arlen Specter's (R-PA) recent floor speech announcing that he would not vote for EFCA. 

All three have called for exploration of legislative alternatives that business and labor can both support.  But if there is to be any attempt at labor law reform in this Congress, yesterday's announcement must be seen as another nail in the coffin for EFCA as repeatedly introduced.

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Labor and its allies have committed to using Congress’ two-week spring recess to seek out Republican support for EFCA, but there are indications that they are aware that compromise may be inevitable. Karoun Demirjian reports in the print edition of CQ Today that leadership of the Senate Health, Education, Labor and Pensions Committee intend to hold hearings and a mark up session shortly after the recess ends. Ms. Demirjian notes that EFCA opponents are warning Senate moderates that any compromises agreed to in the Senate will be reversed in conference committee once the bill passes the House of Representatives. She even quotes AFL-CIO Legislative Director Bill Samuel as saying: “It’s one scenario.”

Meanwhile, organized labor is planning numerous events to keep pressure on lawmakers it considers to be vulnerable. Mike Allen of Politico reports: 

The events include delivering signatures and letters to senators’ district offices, rallies, worker roundtables, letter-writing and phone-banking events, delegation visits, town halls, worksite leafleting and editorial board meetings.

On the cyberspace front, labor has produced a new pro-EFCA video entitled “The Fabric of America.” 

In short, as an unnamed labor official quoted by Politico’s Mr. Allen said: 

“Anyone who thinks the battle over the Employee Free Choice Act is over is wrong with a capital W . . .  .We are more determined then ever and the expenditures on ads and massive field operations show that we are putting 100 percent of our efforts behind this bill.”

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Our guest column, "What's Next for EFCA?," written for Employment Law 360 is now available for download on the publication's website (registration required).  The editors were also kind enough to allow us to make it available on this blog.  It may be downloaded from the "library" link above.

 

 

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With card-check apparently out of reach this year, some advocates of labor reform have suggested that the National Labor Relations Act be amended to provide for expanded union access to employees. These suggestions have come recently from Sen. Arlen Specter (R-PA), Rep. Joe Sestak (D-PA), and by retailers Whole Foods, Costco, and Starbucks. 

It is hard to imagine that the employer community as a whole would consider equal access any more palatable than card check. Despite the term’s ring of fairness, the proposals intrude upon an employer’s private property rights and would require the employer to assemble its employees on paid time and then step aside while a professional union organizer delivers a speech that is hostile to management.  

The contemplated reform would actually bring about a significant imbalance in access. It is true that employers have the ability to call meetings with employees to discuss issues that affect the business, including potential unionization.  (Of course, the employers must pay employees for time spent in those meetings, and unions are free to pay employees to attend meetings if they wish to do so.)  But the union has campaign advantages that employers do not. Under the current law, union organizers can and do conduct repeated visits to employees' homes and social gatherings to present the case for unionization. These visits typically take place over a period of several months before an election petition is filed. Employers are forbidden under current law from visiting employees at home to discuss unions, and none of the proposals would appear change that. An employer’s opportunity for face-to-face discussions with employees is limited to the workplace. Requiring post-petition equal workplace access after months of pre-petition union campaigning in living rooms and kitchen tables simply gives organizers another opportunity to drown out opposing voices. 

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While Senate Majority Leader Harry Reid (D-NV) continues publicly to refuse to concede on the card check provisions of the Employee Free Choice Act, there seems to be very little chance of card check being enacted this year. In addition to losing the support of Sen. Arlen Specter this week, Sen. Diane Feinstein (D-CA) announced yesterday that she was withdrawing her long-standing support for EFCA and would seek legislation that is “less divisive.” 

 John Stanton of Roll Call reports that Sen. Tom Harkin (D-IA) has begun “preliminary discussions with a handful of moderate Republicans to try to come up with a new plan for reforming the nation’s labor laws.”  Additionally, Mr. Stanton notes that:

Democratic aides said that should a compromise be reached, it will likely end up somewhere between the card check bill as it’s currently written and an alternative union organizing proposal floated by Starbucks Corp., Costco Wholesale Corp. and Whole Foods Market Inc. That plan would retain the use of secret ballots when workers decide to unionize and would not include binding arbitration provisions. It would, however, include a number of other provisions, including allowing unions access to employees during off-work hours and requiring a fixed date for elections.

During the intense debate over EFCA that has raged now for more than two years, most management and labor union groups have publicly resisted calls for middle ground on labor law reform. The 2008 elections may have caused labor to feel that no compromise was necessary. After the events of this week, labor’s supporters in Congress seem to be trying to let the movement down easily. Sen. Harkin was also quoted in today’s Los Angeles Times as saying: "We knew all along that this bill would be amended. It seems clear now we'll have to look at some changes to get to the floor."

We have previously outlined many of the changes being considered on this blog and in our White Paper “The Employee Free Choice Act in the 111^th Congress.”

Whether Labor will be willing to discuss anything but total victory is yet to be seen. 

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The 2007 cloture remarks and the law review policy essay referenced by Senator Specter in these remarks are available in our library here.  The Appendix of suggested alternatives is featured in a prior post here.

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Regarding Senator Arlen Specter's (R-PA) surprising announcement earlier that he will oppose cloture and passage of the Employee Free Choice Act, the Huffington Post's Sam Stein reports:

Labor officials are incredibly distraught and, in some cases incredulous, noting the Specter co-sponsored the bill in 2003 and voted for cloture just last year. But while it is a setback for the legislation's chances, Democrats are not conceding defeat. According to the Huffington Post's Ryan Grim, Senate Majority Leader Harry Reid declared after Specter's speech that "He's not the only Republican who has indicated a willingness to consider something being done... He's not the only suspect."

In The Atlantic, Marc Aimbinder writes that Specter's announcement did not close the door on EFCA for good:

By 2010, regardless of whether Specter is re-elected, Democrats will (probably) have another shot at card check, and here Specter is indicating a political compromise: give me the cover for two years, and I'll give you the 60th vote in 2010. Of course, if the economy IS in recovery by then, the urgency to pass pro-labor legislation might be less acute.

SEIU President Andy Stern released a statement initially suggesting Sen. Specter is a hypocrite, but ultimately striking a more conciliatory tone:

It's simple: If you support democracy, you should support the right to debate legislation that could improve the lives of millions of working Americans, pump $49 billion into the economy at a time when we desperately need it, and that's supported by the vast majority of the public.

We look forward to working with Sen. Specter and the rest of the Congress to find ways to give workers the free choice to join a union free from intimidation and harassment.

As of this evening, the AFL-CIO had not yet posted it on its media webpage, but both its blog and TPMDC featured portions of a statement by President John Sweeney:

Today’s announcement by Sen. Specter—a sponsor of the original Employee Free Choice Act who voted for cloture in 2007—is frankly a disappointment and a rebuke to working people, to his own constituents in Pennsylvania and working families around the country.

 

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Earlier in the week, a coalition of retailers announced a "statement of principles" suggesting alternative ideas about possibilities for labor law reform.  Earlier this year, we noted in a white paper that numerous alternative elements were likely to enter the discourse on EFCA at some point in the future.  Along with his statement on the Senate floor today, Senator Arlen Specter (R-PA) attached an appendix of "Some Suggested Revisions to the National Labor Relations Act."  The Senator's suggestions included:

Establishing a timetable:

(a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union

(b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension.

(c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

Adding unfair labor practices:

an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign;

an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;

an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.

Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired

Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign

Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service

On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.

Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith

Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;

Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.

If the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.

Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith

Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.

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The conclusion of Senator Specter's statement on the Senate floor today:

The emphasis on bipartisanship is, I think, misplaced. There is no special virtue in having some Republicans and some Democrats take similar positions. The desired value, really, is independent thought and an objective judgment. It obviously can’t be that all Democrats come to one conclusion and all Republicans come to the opposite conclusion by expressing their individual objective judgments. Senators’ sentiments expressed in the cloakroom frequently differ dramatically from their votes in the well of the Senate. The nation would be better served, in my opinion, with public policy determined by independent, objective legislators’ judgments.

The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.

I am announcing my decision now because I have consulted with a very large number of interested parties on both sides and I have made up my mind. Knowing that I will not support cloture on this bill, Senators may choose to move on and amend the NLRA as I have suggested or otherwise. This announcement should end the rumor mill that I have made some deal for my political advantage. I have not traded my vote in the past and I would not do so now.

Read the entire statement at the Senator's website.

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More coverage across the internet regarding Senator Specter's floor statement today that he will oppose cloture on EFCA:

• "Specter to oppose cloture on card check" -- The Hill
• "Specter says he will oppose labor bill" -- Politico
• "Specter: I'll Vote No on Employee Free Choice Act" -- TPMDC
• "Specter Won't Back Card-Check" -- Wall Street Journal online
• "Specter comes out against 'Card Check'" -- Mcall.com's Pennsylvania Avenue blog
• "Card Check: NAM President Engler Reacts to Specter Statement" -- ShopFloor.org
• "Breaking News: Sen. Specter Will Vote Against Cloture and Final Passage of EFCA" -- Americans for Tax Reform
• "Breaking News: Arlen Specter acts like a conservative for once" -- Michelle Malkin

 

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National Journal's CongressDaily today reports:

Sen. Arlen Specter, R-Pa., will vote against a cloture motion to limit debate on the Employee Free Choice Act, business groups said today. Keith Smith, who directs labor policy at the National Association of Manufacturers, said his group expects Specter to announce his decision in a floor speech early this afternoon. The U.S. Chamber of Commerce said it also was expecting the announcement. Specter's office did not immediately respond to requests for comment. Specter's opposition could doom the legislation because to pass the bill organized labor needs 60 votes to overcome a Republican filibuster. That means keeping every single Democratic vote, securing a win for Democratic candidate Al Franken in the ongoing Minnesota Senate race and keeping Specter, who voted for cloture when the Senate considered the bill in 2007, on board.

We have long speculated that Senator Specter (R-PA) wished to drive an alternative discussion on labor law reform.  Recent developments -- the Maine GOP Senators' agreement with Specter on the stimulus, the formation of Senator Evan Bayh's (D-IA) "Practicality Caucus," and the announcement of the Committee for a Level Playing Field -- certainly suggest opportunities by perceived moderates to change the debate. 

We will post more information about Senator Specter's statement as it becomes available.

(Hat tip: ShopFloor.org)

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As reported earlier, three major retail outfits -- Starbucks, Costco and Whole Foods -- have formed a coalition, dubbed the "Committee for Level Playing Field," designed to explore an alternative path to labor law reform.  On a conference call earlier today, the group announced its "Principles of Reform," to wit:

(1) Secret Ballot. Guarantee the right of management and unions to require a secret ballot under all circumstances.

(2) Certification and Decertification Treated Equally. Permit management to initiate a decertification campaign through a secret ballot election just as employees and unions are presently able to initiate certification and decertification campaigns.

(3) Date Certain for Elections. Guarantee a fixed time period for the secret-ballot election--i.e., do not permit delays of an established day for a secret ballot to certify or decertify a union.

(4) Equal Access to Employees for Campaign Purposes. Level playing field for unions and management to access employees during non-working hours during the campaign period, e.g., permitting each to make presentations to employees at a neutral location concerning the issue of whether to form a union.

(5) Expedited Enforcement and Stricter Penalties. Expedited enforcement for serious and pervasive violations of law by labor and management and stricter penalties for serious and pervasive violations (e.g., unlawful discharges), including the penalty of mandatory injunctions when appropriate.

(6) Preserve Private Collective Bargaining. No mandatory arbitration that dictates contract terms, but stricter penalties and expedited enforcement for violations of good faith bargaining rules, including an expedited timetable to begin bargaining after union certification.

Both sides of the EFCA debate have reacted in expected fashion.  Rep. George Miller (D-CA) summarily dismissed the effort:

"This proposal is unacceptable. It was written by CEOs for CEOs. It is not a serious attempt at labor law reform because it fails to fundamentally address key problems that currently prevent workers from being able to join together and bargain for a better life...”

AFL-CIO Director of Government Affairs Bill Samuel indicated an unwillingness to take seriously any efforts by management to generate dialogue regarding labor law reform:

"[A] proposal coming from corporations, some of whom have their own history of violating workers' rights, is simply not an alternative that lives up to giving workers back the freedom to form unions."

Similarly, on the other side of the coin, a spokesperson for the Coalition for a Democratic Workplace said:

"EFCA is clearly on life support so to put out an alternative seems premature and naive." 

There should be no mistake: EFCA is simply bad law and bad policy.  Still, some in Washington are clearly beginning to seek "third ways" to build consensus -- and to find compromise capable of breaking a filibuster.  It would seem prudent for employers not to dismiss this group's statement of principles out of hand, but rather to use it to begin a more thoughful discourse on the issue of potential labor law reform.  (Our white paper, published earlier this year, identified many elements likely to be raised in connection with alternatives to EFCA -- some of which indeed appear in the "Committee's" statement.) 

More commentary:

• "EFCA backers not interested in corporate alternative" -- The Hill
• Politico's Ben Smith's blog -- "Committee for a Level Playing Field"
• "Executives Detail Labor Bill Compromise" -- Washington Post
• "Card Check: No Compromise" -- ShopFloor.org

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Today's AP reports that Starbucks, Whole Foods and Costco have announced that they intend to submit alternatives to EFCA for widespread consideration.  The report (via the Minneapolis Star-Tribune) states:

...[T]he companies on Saturday announced an ad hoc committee aimed at pushing through alternatives. Their proposals will seek to maintain management's right to demand a secret ballot election and would leave out binding arbitration.

The three retailers want to toughen penalties for companies that retaliate against workers before union elections, while at the same time stiffen penalties for union violations.

"We believe in and trust our employees, which is neither anti-union nor pro-status quo," said James Sinegal of Costco. He said the group's proposals "will ensure a fair opportunity for workers to make an informed choice, with a secret ballot, whether they want a union or whether they wish to retain non-union status."

Lest anyone presume that these employers are casually throwing these ideas out there, the report continues, noting that "longtime Democratic operative," lawyer Lanny Davis has been retained by the retailers to help promote their efforts, and: 

Davis said he had discussed the three major retailers' broad principles with the staffs of almost two dozen Democratic and Republican senators. He said most were "positive about our third-way approach."

"I'm proud to call myself a pro-labor liberal Democrat who believes that reforms are needed to provide a level playing field for both labor and management, but not at the expense of a guaranteed option for a secret ballot by both workers and management and certainly not at the expense of preserving the historic process of private, voluntary collective bargaining," Davis said.

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Although the AFL-CIO and supporters in Congress have repeatedly expressed confidence that they will have the votes to pass the Employee Free Choice Act, the AP reports:

Democratic leaders hinted Tuesday that compromise may be needed to get wavering lawmakers on board for a bill to make union organizing easier.

The Democrats insisted they are not losing support, but acknowledged that some changes might be needed.

The comments came as the Employee Free Choice Act was formally introduced in the House and Senate, intensifying the already heated debate between business groups that oppose the measure and labor groups that consider it their top priority.

Iowa Sen. Tom Harkin, a lead sponsor of the bill, said his colleagues are talking about "certain modifications," but no agreement has been reached.

With the threat of the filibuster firmly in place, EFCA proponents will likely need to consider significant modifications during the legislative process.  In the past, we have noted that key swing vote Senator Arlen Specter's (R-PA) Policy Essay in the Harvard Journal of Legislation identifies several potential elements of alternative approaches to labor law reform.  The MLA White Paper on EFCA also contains an overview of many of these and other similar elements.

Yesterday, Workplace Prof' Blog's Professor Jeffrey Hirsch also linked to an alternative labor law reform bill introduced by Rep. Joe Sestak (D-PA) -- the National Labor Relations Modernization Act (H.R. 1355).  This law would:

1. provide for mandatory arbitration following a 120-day mediation period, if after an initial 120 days of bargaining failed to result in an agreement;
2. increase penalties against employers (similarly to EFCA's proposed changes); and
3. require an employer to provide equal access to the employees to union organizers once an election is ordered.

Hirsch questions whether this proposal might also provide the basis for some legislative compromise.

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The Pittsburgh Tribune-Review and Pittsburgh Post-Gazette both carry pieces today on the probability that EFCA may be re-introduced in the coming weeks.  We have previously observed -- both in prior blog posts and in our white paper on EFCA in the 111th Congress -- the central role Pennsylvania Senator Arlen Specter (R) will play in EFCA's prospects this year.  That notion is reflected throughout today's PA newspapers.     

The Post-Gazette today declares "Specter: The man in the middle."  The piece notes the pressure on Specter from organized labor regarding the effort to pass EFCA:

The bill, which would make it easier to organize workers, is labor's top priority and considered anathema by the business community, which claims it would eliminate the right to a secret ballot. Most political experts say labor, which has supported Mr. Specter in his past two re-election bids, has to be behind him in order for him to win in the general election.

"Arlen Specter will not be our candidate in 2010 if he doesn't support an opportunity for Americans to have free elections in the workplace," said Bill George, president of the Pennsylvania AFL-CIO, who added if Mr. Specter wins his union's endorsement he expects a lot of labor members to cross over in the Republican primary to vote for him.

Suggesting that the bill will be re-introduced in Spring or Summer, the Tribune-Review reports:

Pennsylvania's Arlen Specter was the only Republican to vote for the Senate measure. Sweeping Democratic gains at the polls in November -- Democrats hold 58 Senate seats -- puts card-check back in play.

It is unclear whether Specter will support the bill again. His office declined to comment.

Specter, who stands for re-election next year, is under fire from fellow Republicans for agreeing to vote for the $787 billion stimulus package and would face more political rage in the Republican primary if he votes for card-check. Yet, should he win the primary, voting for card check could help significantly in the general election in a state with nearly 1.25 million more Democrats than Republicans.

The Tribune-Review follows up with an Opinion piece, asking "Nervous, Sen. Specter?"  Featuring quotes from a potential GOP primary challenger, the paper submits:

Arlen Specter isn't in just a bit of hot water these days — he's fully immersed in a scalding cauldron.

That's how we read the results of a Quinnipiac University poll released Wednesday that illustrates the difficulty Pennsylvania's senior senator might have getting re-elected next year.

With more than a year to go before Specter would even face a challenge in the Republican primary, more people believe Specter should be retired than retained. Forty-three percent of the survey's respondents said Specter should be retired; just 40 percent favor retaining him.

If Senator Specter remains intent on pursuing alternative routes to labor law reform, the tightrope he must walk may be getting more challenging.  But, even these articles note, it is a position in which he has often found himself during his tenure in the Senate.

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When EFCA was introduced in the last Congress, President Bush had vowed that he would have vetoed the bill. He never had to, as a Senate filibuster killed it well short of his desk.

H.R. 800 was introduced on February 5, 2007, by Rep. George Miller (D-CA). On March 1, 2007, after only two and one-half hours of debate, the House of Representatives passed EFCA by a vote of 241 - 185.  Thirteen Republicans voted in favor of the measure, while only two Democrats voted against it.

EFCA encountered an almost immediate “silent filibuster” in the Senate. The bill’s supporters were not able to secure the votes needed to end the filibuster, moving EFCA forward to the floor for an “up or down” vote on the bill itself. On June 26, 2007, the Motion to Invoke Cloture failed to garner the sixty (60) votes required. Every Democrat, except Sen. Tim Johnson (ND) who was unable to vote due to illness, voted for cloture. Every Republican, with the exception of Sen. Arlen Specter (PA), voted against cloture. The result was a 51-48 failure to end debate.

The 2008 election saw the Democratic caucus expand its majority in the House from 235 to 256 seats. Barring a significant re-thinking of the issue  -- by the newer “Blue Dog” faction of the caucus, for example -- EFCA is expected to pass easily when re-introduced in the House. 

Once again, the Senate is likely to prove the most important factor. The EFCA lobby’s ability to get the bill passed depends almost entirely on its ability to get sixty (60) votes to end a filibuster. There are some appointments and legal challenges still up in the air -- most notably the recount litigation in Minnesota. It appears likely, however, that as a result of the November elections, eight (8) Democrats will replace former Republican Senators who voted against cloture. If every single Senator who voted on the cloture motion in the 110th votes the same way in this Senate, the eight (8) new Democrats vote for cloture, and Sen. Johnson is able to cast his vote, that adds up precisely to the sixty (60) votes needed to bring EFCA to the floor of the Senate for a vote. It is safe to say with those numbers that ultimate passage would be highly likely. 

There is some question whether or not Senator Specter will break with the G.O.P. to cast the determinative vote. Sen. Specter has expressed a strong desire to see labor law reform addressed in this Congress. Yet he has been highly critical of EFCA (and the tenor of the related debate) in both his 2007 floor speech on the cloture motion and in a Policy Essay published in last Summer’s Harvard Policy on Legislation.

Moreover, the Democratic Senators from Arkansas -- Mark Pryor and Blanche Lincoln -- have both expressed varying degrees of doubt about the need for the legislation and suggested the possibility of some form of compromise. 

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