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Employee Free Choice Act Legislation Undergoing Changes During Negotiations

May 8, 2009
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When Sen. Arlen Specter, D-Pennsylvania, recently switched parties, he vowed to remain opposed to a bill that would make it easier for workers to join unions.

But Specter’s move has stoked negotiations over the Employee Free Choice Act that may lead to two key provisions being modified.

One would allow the formation of a union when a majority of workers sign cards authorizing one. Another would mandate binding arbitration if a company and a union don’t reach an agreement on a first contract within 120 days of the union being recognized.

In a March 24 statement, Specter said he opposed both ideas. But he asserted that management-labor relations are broken and proposed ways to amend the National Labor Relations Act. Some of those ideas are finding their way into negotiations over the union bill.

The so-called card-check provision may be replaced with a plan to shorten union elections to a range of seven to 21 days after a petition has been filed, according to a source familiar with the talks. The mandatory arbitration proposal might be replaced with one focusing on expedited mediation.

Opponents say the card-check process would effectively eliminate secret-ballot union elections. Proponents say that the bill would preserve the secret ballot but give employees the option of using card check.

Capitol Hill talks have been spurred by Specter’s crossing the aisle.

His move raised the number of Senate Democrats to 57. The two Senate independents usually caucus with the Democrats, giving them a total of 60, if Democratic candidate Al Franken is declared the winner in Minnesota by a state court.

With 60 members, Democrats could squelch Republican filibusters like the one that killed the union bill in 2007. But Specter and some moderate Democrats have qualms about the card-check and arbitration provisions, leaving supporters short of a filibuster-proof number.

That has led Sen. Tom Harkin, D-Iowa and author of the Senate version of the bill, to launch negotiations with Specter.

The card-check provision may be fading because supporters see an opportunity to achieve it, or something like it, through National Labor Relations Board rulings when the appropriate case comes up, according to one source. The NLRB membership is set to swing to a 3-2 Democratic advantage now that a Democrat is in the White House.

Union advocates don’t mention card-check by name when they discuss the principles they want to see in a final bill.

“Workers need to have a real choice to form a union and bargain for a better life, free from intimidation,” AFL-CIO spokeswoman Alison Omens said.

She also said companies should not be able to “engage in endless delays and stalling tactics” to prevent a first contract, and that penalties for violating workers’ rights should be strengthened.

Kate Cyrul, communications director for Harkin, used similar language in outlining the EFCA principles that should survive negotiations.

“One thing all Democrats can agree on is that the current system is broken and we need real reform to level the playing field,” Cyrul said. “[Harkin] believes we are on the right track, and we will get a bill to the president’s desk that achieves these important goals.”

Not if the business community has its way.

Fierce opposition to EFCA has not cooled among such groups as the U.S. Chamber of Commerce and the National Association of Manufacturers. A bill with a diluted card-check provision would also be rejected.

“We oppose any proposal that stems from the fundamentally flawed EFCA,” said Keith Smith, NAM director of employment and labor policy. “No compromise. EFCA is a dangerous power grab by union leaders.”

NAM and other groups argue that the bill would increase costs for companies fighting the recession. Advocates say that greater unionization will lead to higher wages and benefits for struggling workers.

Although EFCA is organized labor’s top priority, leaders believe that nothing decisive will happen until Franken is seated in the Senate.

“Labor’s committed to get a deal, and there’s a lot of patience to hang together until we get a deal,” said Jamie Horwitz, a union consultant based in Washington.

—Mark Schoeff Jr.

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