Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

Some have questioned whether the challenges presented by the current economy and the President’s focus on the Stimulus package, might cause EFCA to slide a little further down the White House list of priorities. But listening to the two men at the top of the Executive branch leaves much room to wonder:

From today’s WaPo:

In an interview with CNBC on Thursday, Biden said of the Employee Free Choice Act, also known as "card check": "This year. This year, we hope. Our expectation is this year, this calendar year, that we will move, and hopefully with some bipartisan support, to dealing with this issue."

But in an interview with The Washington Post before his inauguration, Obama was less committal. Asked whether the bill, which would allow workers to organize more easily, would come to his desk within a year, Obama said, "Let's see what the legislative docket looks like."

So, which is it? We shall see soon. EFCA was introduced in the 110th Congress on February 5, 2007. This will be a week to watch very closely…

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If EFCA has to wait, the White House has not wasted any time jumping head-first into other initiatives to help revive the American Labor movement. Three Executive Orders issued today by President Barack Obama alter labor relations obligations for companies that conduct business with the federal government or work on federally-funded projects.   These Executive Orders: 

(a) eliminate the requirement that federal contractors post notices advising union-represented employees of their rights not to join the union, instead requiring a notice advising employees of their right to organize;

(b) prevent contractors from using federal funds to influence workers deciding whether to form a union; and

(c) require new service contractors on federal facility contracts to offer employment to all the predecessor contractor’s employees.

Government contractors should perform an immediate review of their contracts, upcoming bids and standard procedures, and consider legal strategies for ensuring compliance. The more detailed McKenna Long & Aldridge white paper on these Executive Orders is available here.

Additional commentary:

“President Obama and Organized Labor -- Executive Orders” -- ShopFloor.org

“Labor’s Day at the White House” -- The Atlantic

“Obama Signs Series of Pro-Labor Executive Orders” -- CQ Politics

And McKenna Long & Aldridge partner Seth Borden quoted throughout this Employment Law 360 (subscription) piece “Obama Signs Labor Orders Reversing Bush Policies.”

Curiously, the Orders have not been posted on the White House’s up-to-the minute blog -- or the specific web page dedicated to Executive Orders.

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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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