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Is the Employee Free Choice Act Dead

July 7, 2009
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Related Topics: Labor Relations, Workforce Planning, Featured Article
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Democrats may have increased their majority in the Senate to the magic 60 that would overcome Republican procedural moves to block legislation, but they still may have to significantly change the Employee Free Choice Act, a signature piece of Democratic legislation that would make it easier for workers to join unions.

The sticking point, as it has been for months, is the bill’s “card-check” provision. As written, the legislation would force companies to recognize unions if a majority of employees sign cards authorizing a bargaining unit. Currently, employers can demand a secret-ballot election.

The measure also would implement mandatory arbitration for first contracts if an agreement isn’t reached after 120 days of negotiations and would sharply increase penalties on employers that violate workers’ rights during an organizing campaign.

If Republicans remain cohesive in their opposition to the bill, which has been the subject of fierce and expensive lobbying and advertising campaigns by both sides, they would still fall short of the number required to filibuster the bill.

But there are enough Democrats who oppose card check that there is serious doubt about whether it can reach the 60-vote threshold. Among the Democratic opponents are Sens. Arlen Specter, newly Democratic, of Pennsylvania, and Mark Pryor, D-Arkansas.

“The Employee Free Choice Act is dead,” Pryor said in a June 25 statement. “I continue to meet with business, labor and my colleagues to discuss the potential for common ground to make sure the process for forming a union is fair for workers and employers. This is an effort to bring new ideas to the table, but there is no draft and there remains a lot of distance between the parties.”

A labor activist, who did not want to be identified because the negotiations are continuing, called card check “a significant hurdle.”

But he emphasized that the provision remains viable. “We’re not ready to call anything dead yet,” he said.

Proponents of the Employee Free Choice Act felt they had a huge breakthrough on June 30, when the Minnesota Supreme Court certified Al Franken as the winner of that state’s Senate seat, in a race that has been contested since November.

They hailed Franken’s belated win as a steppingstone to passage of the bill, which has been stalled since it was introduced in March in the face of adamant opposition from the business lobby.

But even now that Franken has been sworn in, the bill faces an uphill battle because Specter and several other moderate Democrats oppose it. Negotiations involving Harkin, Specter and other senators may result in a compromise after the July Fourth congressional recess that removes the card-check provision.

One compromise, according to sources familiar with the negotiation, could involve taking out card check but lowering the threshold for triggering a union election to authorization by less than 30 percent of workers.

In addition, the election time frame would be shortened to a range of 10 to 15 days from the current 45 to 60. The bill would place restrictions on employers’ ability to conduct compulsory anti-union meetings and would include some form of binding arbitration.

The labor activist interviewed for this story asserted that senators are looking for a compromise without sacrificing the principles of making it easier for workers to form a union, get an initial contract and receive protection from employer intimidation.

Their hunt for 60 Senate votes is being made more difficult by worries, expressed by Republicans and moderate Democrats, that the Employee Free Choice Act would significantly raise labor costs for companies that are struggling to survive the recession.

Recent Articles by Mark Schoeff Jr.

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