The bill stalled after its March introduction, and will likely be revised before hitting the Senate floor. The original version would allow bargaining units to form when a majority of workers sign cards authorizing them.
Moderate Senate Democrats expressed reservations about the provision, which opponents assert would effectively eliminate secret-ballot votes. A compromise would probably provide for accelerated union election timetables.
Although the act has been dormant for months, organized labor’s priorities are sprouting in other ways—primarily through executive orders and the regulatory process.
Shortly after his inauguration, President Barack Obama signed an executive order requiring federal contractors to inform employees that they have a right to organize—one of three orders that promoted unionization among contractors.
More recently, Labor Secretary Hilda Solis announced the agency’s 2010 regulatory framework, a list of 90 proposed rules designed in large part to increase safety and wage enforcement and to “ensure that workers have a voice in the workplace,” according to a Department of Labor statement.
While Capitol Hill and the Obama administration pursue labor-friendly policies, some companies are trying to pre-empt union gains in their operations in anticipation that the Employee Free Choice Act might be approved. Other employers, experts say, seem oblivious to the changes brewing in Washington.
They will get a rude jolt if the act emerges in the Senate once health care reform is finished, as business groups and unions predict.
“We’re likely to see a showdown on this issue early in 2010,” says Steven Law, chief legal officer at the U.S. Chamber of Commerce. “We’ll show up with a massive effort to counter that legislation.”
Not dead yet
A couple of factors work in favor of the Employee Free Choice Act’s resurrection. First, if Congress is going to tackle controversial measures, it will want to do so early in 2010 to keep the debate as far away from the midterm elections as possible.
In addition, the political math is as favorable for unions as it has been in a generation. Thanks in part to hundreds of millions of dollars that labor spent in the 2008 election and the vast number of hours its members devoted to grass-roots lobbying, Democrats have a 40-vote majority in the House. In the Senate, the Democratic caucus totals 60, just enough to overcome a filibuster.
Unions are reminding Democrats how much help they gave them last fall. They also have Obama’s ear. White House logs for the first six months of the administration show that Andy Stern, president of the Service Employees International Union, was the White House’s most frequent visitor.
“Big labor has access to all levels of federal government and particularly the White House that they haven’t had in a long time—and perhaps ever,” says John Bowen, a partner at Ford & Harrison in Minneapolis. “Even during the Clinton years, I don’t think labor had this much support, this much direct influence over policy and policymakers.”
Once health care reform is out of the way, labor wants to move on the Employee Free Choice Act. Even legislation designed to spur job growth—a priority for Democrats who are nervous about high unemployment undermining their election prospects—shouldn’t create another slowdown because the act is straightforward, according to a union leader.
“The jobs bill is much more complicated than the Employee Free Choice Act,” says Anna Burger, secretary-treasurer of the SEIU. “This is not rocket science. This is not a complicated new industry. This bill helps workers share in the prosperity of their company.”
Renewed labor political strength could lead to greater union activity in the workplace. Some employers are preparing by increasing communication with employees about compensation, benefits and working conditions, according to lawyers and business lobbyists. But many, perhaps lulled to sleep by labor’s slow start, are not paying attention.
“A lot of companies still aren’t aware of the breadth of the change that could be coming,” Law says.
The Employee Free Choice Act would represent a profound workplace transformation. In its original form, the bill would allow workers to form unions when a majority signs cards authorizing one, a process called “card check.” Under current law, employers can insist on a secret-ballot election supervised by the National Labor Relations Board.
It also would impose mandatory binding arbitration for first-contract negotiations and sharply increase penalties on employers who illegally interfere with organizing campaigns.
For weeks over the spring and summer, Capitol Hill Democrats worked on a compromise that would replace the card-check provision with one that requires faster union elections. Observers speculate that the time frame could be as short as seven to 10 days after a petition is filed, as opposed to the current average of 42 days.
Sen. Tom Harkin, D-Iowa, chairman of the Senate Health Education Labor and Pensions Committee, indicated this fall that the bill is “on the back burner” but still simmering. He and Sen. Arlen Specter, D-Pennsylvania, have asserted that a compromise has been reached that will get the bill through the Senate.
Burger is confident that the Employee Free Choice Act can overcome what is certain to be a Republican filibuster in the Senate.
“When it comes down to cloture, we will have the 60 votes we need,” Burger says, referring to the process for ending Senate debate and moving to a final vote. “It’s clear that we need to move an agenda that works for working people, with or without Republicans.”
Unions are telling Democrats that their members did not knock on doors, make phone calls and march in parades in order for them to come to Congress and support “corporate barons,” Burger says.
“If we think CEOs can take it all and leave crumbs for workers, we’ll never have a middle class in this country,” Burger says of the bill, which she argues will enable employees to share in company profits through collective bargaining.
Unions will drill that message into Democrats with renewed vigor, especially because 2010 offers a unique opportunity to achieve their objectives.
Just before he took over as president of the AFL-CIO in September, Richard Trumka demonstrated the assertive union posture.
“Today, more than ever, we need to be a labor movement that stands by our friends, punishes its enemies, and challenges those who, well, can’t seem to decide which side they’re on,” Trumka said in an August 31 speech at the Center for American Progress in Washington. “I’m talking about the politicians who always want us to turn out our members to vote for them, but who somehow always seem to forget workers after the votes are counted.”
Business groups, however, insist that the Employee Free Choice Act is not gaining momentum and continues to lack the support required to get the approval in the Senate.
“There’s no evidence that’s been shown to us that moderate [senators] are anywhere near on board” with the Employee Free Choice Act, Law says.
Katherine Lugar, executive vice president for public affairs for the Retail Industry Leaders Association, also doubts that an Employee Free Choice Act compromise is ready to roll through the Senate. The centrist Democrats who are holding it up haven’t been part of the compromise talks Harkin and Specter have been having.
The business community asserts that the act would burden businesses with higher labor costs and more onerous work rules at the worst possible time—as they struggle to emerge from a recession.
“Why [congressional leaders] would move to something like EFCA while they’re talking about job growth is laughable,” Lugar says.
Nevertheless, Larry Cohen, president of the Communications Workers of America, is
cautiously optimistic about the act.
“We have a challenge with the Senate and its rules,” Cohen says. “I would say there are 60 [votes]; there aren’t 61.”
Labor advances through agencies, rules and the NLRB
Even though the labor agenda has run into obstacles on Capitol Hill, it is making progress elsewhere in government.
In addition to the executive orders Obama signed to promote unionization among federal contractors, he approved another early in his administration that allows federal agencies to require the use of union-only project labor agreements on construction projects of more than $25 million.
In October, Solis followed through on the Department of Labor’s commitment to increase workplace safety enforcement by levying a record-high $87.4 million fine on BP Products North America Inc. for not doing enough to improve safety since a 2005 explosion at its Texas City, Texas, refinery killed 15 people and injured 170.
Solis also has hired hundreds of new inspectors for the Wage and Hour Division and the Occupational Safety and Health Administration.
Activity is increasing at other regulatory entities. Recently, the National Mediation Board proposed a rule that would allow unions to win campaigns at airlines and rail carriers by obtaining a majority of workers who vote, not the majority in the proposed bargaining unit. Unions say the change makes such elections more democratic. Business groups say that 75 years of labor law is being overturned by regulatory fiat.
The shift in the political tide also is benefiting unions at agencies and on quasi-judicial bodies. For instance, now that Obama is in office, the NLRB will have a Democratic majority.
Senate Republicans have put a hold on Craig Becker, one of Obama’s nominees, because they are concerned that Becker wants eliminate management’s ability to oppose unions.
It’s likely that a newly constituted NLRB will overturn a number of previous rulings dealing with the definition of a supervisor, the use of company e-mail systems during organizing campaigns and the ability of workers to overturn a card-check election that was held with the company’s acquiescence.
The NLRB doesn’t have to wait for a labor dispute to come up to try to reform the way that union organizing is conducted, according to John Toner, who is of counsel at Seyfarth Shaw in Washington.
The NLRB—and other agencies—can exert power through proposing new regulations, as the National Mediation Board did.
“If you go on a case-by-case basis, it can be very time-consuming,” Toner says. “The rule-making can be dramatically faster. If they do it by rule-making, they can pick and choose the policies they would like to change.”