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Weekly UpdatesAfter nearly eight months, millions of dollars in campaign and lawyer's fees and thousands of pages of legal briefs, the Minnesota State Supreme Court on June 30 ended one of the most protracted election recount battles in recent history by naming Democrat Al Franken the winner in his battle with Republican Norm Coleman for that state's second U.S. Senate seat.
No matter who you wanted to win, few can deny the significance of Franken's victory, which hands Senate Democrats the elusive 60-vote "filibuster proof" majority, provided everyone votes along party lines.
It is that qualifier that takes on particular importance when it comes to bills like the union-backed Employee Free Choice Act (EFCA; H.R. 1409, S.560). The EFCA would make it easier for labor to organize by eliminating requirements for secret ballot elections during organizing, expediting first contracts, stiffening penalties for anti-union activities and more. Not surprisingly, it has spawned a bitter, multi-million dollar public relations war between organized labor and U.S. business.
This is not the first time the EFCA has surfaced. It was proposed by Rep. George Miller (D-CA) and Sen. Edward Kennedy (D-MA) in 2003 and 2005 but was prevented from being debated because of Republican majorities. Even after Democrats gained control, it was again thwarted by a GOP filibuster in 2007.
Oh, how times have changed. Passage in the House, where the bill sailed through by a vote of 241 to 185 in 2007, is all but guaranteed, turning all eyes to the Senate. While Franken may have buoyed EFCA supporters by announcing on July 7 that he was signing on as a co-sponsor, it's not a done deal. The Senate's 40 Republicans are solidly against the bill and 12 Senate Democrats have yet to commit one way or another. That forces advocates to search for compromises behind the scenes.
Employee Free Choice Act
On e of the most controversial features of the EFCA is its proposal to change the process by which a union can be certified as the bargaining representative of employees.
Under current law, a company is generally not required to recognize a union as a bargaining representative unless it prevails in a National Labor Relations Board (NLRB)-conducted secret ballot election.
Existing law allows employers to campaign against the union during the run-up to the secret ballot election but EFCA supporters claim they frequently use this time to threaten and intimidate workers into voting against the union. The EFCA looks to address this by amending the National Labor Relations Act to allow NLRB to certify a union as the employee bargaining representative if a majority of workers merely sign valid union authorization cards (the so-called "card-check" process). The legislation would still give unions the option to petition for a NLRB-supervised secret ballot election once 30% of the workers have signed authorization cards.
The bill expedites the process for negotiating a first collective bargaining contract, a process that can typically last anywhere from 60 days to a year but under EFCA, would begin within 10 days of the card check certification. If labor and management are unable to agree on terms for a first collective bar gaining contract within 90 days, either can request federal mediation. If mediators are unable to bring the parties to agreement after 30 days, the dispute is referred to arbitration, the results of which are binding for two years.
EFCA also strengthens enforcement against unfair labor practices. It sets fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees' rights during an organizing campaign or first-contract drive. It also increases the amount paid to those who have been discharged or discriminated against during an organizing campaign or first-contract drive to "three times back pay."
Supporters of EFCA claim that the changes are needed to fend off illegal union busting tactics. Opponents of the bill--including the National Association of Manufacturers (NAM) and U.S. Chamber of Commerce--argue that the mandatory card check system is undemocratic, will lead to illegal coercion and will put a strain on U.S. business when the economy can hardly afford it.
One area of agreement on both sides, however, is that the effects of the EFCA would be broad and sweeping, with many experts predicting that passage of the bill could trigger the largest unionization drive since the National Labor Relations Act of 1935. To illustrate this, they point to Canada, which has mandatory card check in several provinces and about 32% of workers belong to a union (compared to 12% in the U.S.).
Possible Compromises
As noted earlier, 12 Senate Democrats have expressed reservations about the bill in its current form: Sens. Michael Bennet (CO), Thomas Carper (DE), Kent Conrad (ND), Dianne Feinstein (CA), Mary Landrieu (LA), Blanche Lincoln (AR), Ben Nelson (FL), Mark Pryor (AR), Mark Udall (CO), Arlen Specter (PA), Mark Warner (VA) and Jim Webb (VA).
Sen. Tom Harkin (D-IA), who has been acting as the EFCA point person, has been working with his wavering colleagues behind the scenes to broker a deal. Although he has said he is willing to compromise, he has steadfastly insisted that any alterative would have to contain three "core" principles: give workers the ability to choose between majority sign up and secret ballot elections, require unionized employees to receive a first contract by a certain date and impose meaningful penalties against labor law violations.
He may have his work cut out for him. Several of the senators, including Carper, Feinstein and Specter, have expressed grave concerns about the bill's card check provisions. Some of the alternatives that have been suggested include: preserving the secret ballot election process but conducting it on an expedited time frame, imposing union access provisions that would require equal time for unions when management calls meetings to discuss organizing and an option that would allow workers to mail-in their authorization cards. Another idea that has been mentioned is modifying the binding arbitration provisions to use a "baseball-style" approach in which both sides present their best offers and the arbitrator picks one or the other.
Looking Ahead
While EFCA supporters may have hoped that AI Franken's seating would spur the compromise talks, the likelihood that the bill will come up before Congress adjourns for recess in August is starting to diminish. Lawmakers struggle to tackle other sprawling legislative priorities (i.e. the behemoth that is healthcare reform). Tellingly, while meeting with labor leaders on July 13, President Obama reiterated his commitment to passing the EFCA but would not speculate on a timeline, raising the possibility that the bill may not make the cut this year. For its part, INDA has joined the NAM and other business groups in opposing the legislation. While it is difficult to say when the EFCA will advance and in what form, there are resources avail able for those interested in getting involved. The National Association of Manufacturers has created a webbased "EFCA Toolkit" that allows users to sign up for email alerts, provides background information, polling data, templates for contacting lawmakers and more.
Capitol Comments appears monthly in NONWOVENS INDUSTRY.
By Jessica Franken
INDA Director of Government Affairs
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