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

Kris Maher writes in today's Wall Street Journal that "Odds of a Vote Dim for Card-Check Bill":

Further complicating the bill's chances this year are the serious illnesses of Sens. Edward Kennedy and Robert Byrd -- both strong labor supporters -- and doubts about whether the two would physically be able to attend a floor vote. Democrats would need both of them to marshal the 60 votes required to thwart a likely Republican-led filibuster.

"They don't have the votes without those two guys coming to the floor at this point," said a person familiar with Democratic leaders' thinking.

Peter Francia, a labor and politics expert at East Carolina University in Greenville, N.C., said, "Without 60 votes, EFCA will not move forward and is likely to face delays into 2010."

In The Hill, Kevin Bogardus suggests that the NLRB Members that President Obama seeks to have appointed -- whether by Senate confirmation or recess appointment -- "worries business":

Business advocates fear the NLRB, at its full capacity and run by Democrats for the first time in eight years, will vote against their interests in favor of unions. Of particular concern is that the board will try to implement parts, if not all, of the Employee Free Choice Act (EFCA), or card-check, which makes it easier for employees to organize.

“If they can’t get the Employee Free Choice Act passed, is this Plan B to have someone confirmed to the board who will take an aggressive stance with the law and try to implement it through the machinery of the board?” said Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce. Business advocates fear the NLRB, at its full capacity and run by Democrats for the first time in eight years, will vote against their interests in favor of unions. Of particular concern is that the board will try to implement parts, if not all, of the Employee Free Choice Act (EFCA), or card-check, which makes it easier for employees to organize.

“If they can’t get the Employee Free Choice Act passed, is this Plan B to have someone confirmed to the board who will take an aggressive stance with the law and try to implement it through the machinery of the board?” said Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce.

Regular EFCA Report readers will recall our April 2009 posts that outlined areas where we believe the Obama NLRB will seek to reverse precedent:

• "What to Expect from President Obama's NLRB"
• "What to Expect from President Obama's NLRB (Part II)"

TheStreet.com today carries an interesting piece, ""Labor Law Debate Closely Watched," regarding the way unions representing transportation workers under the Railway Labor Act view the developments regarding EFCA.  The piece quotes Robert Roach, general vice president of the International Association of Machinists, extensively:

"If the law is changed under the National Labor Relations Act, that will fuel a debate we are having regarding the RLA election process, which currently is unfair," Roach says. "The RLA is governed and administered by the National Mediation Board, which at some point could alter its regulations. So the Employee Free Choice Act is important because it will help to form that debate, as to what changes if any could be made.

"To start that process, we would have to petition the board to make changes," he says

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Congress Daily, a subscription service of National Journal, reports this morning that efforts to pass a compromise version of “the Employee Free Choice Act have been put firmly on the chamber's back burner -- perhaps for the rest of the year -- as senators, aides and lobbyists focus on health care and other legislation.” The report, by Dan Friedman and Carrie Dann, quotes Sen. Tom Harkin (D-IA) as saying: "We're not doing anything right now." Sen. Harkin has been the lead Senate advocate for EFCA while Sen. Edward Kennedy (D-MA) is recovering from medical issues. The report asserts that the group working on compromise language has not met in two weeks and is not likely to do so before the August recess. As for action on EFCA after the recess, the writers note quote Sen. Harkin as saying: "We've got the healthcare bill; we've got appropriations bills, and we're lacking two senators that we need right now."

As we noted yesterday, unnamed aides to some Senate Democrats have hinted that Senate Majority Leader Harry Reid (D-NV) may be planning a maneuver where a compromise bill is introduced and rushed through “before anyone can mobilize against it."  Mr. Friedman and Ms. Dann noted that such a strategy was rumored, but cited their own unnamed aides as offering: “that prospect is not likely soon.”

According to Mr. Froiedman and Ms. Dann:

Labor sources say union leaders are meeting regularly to discuss potential compromise language but conceded the absence of Sens. Robert Byrd, D-W.Va., and Health Education, Labor and Pensions Chairman Edward Kennedy has drained much of the urgency from efforts to solidify a deal.

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Today's ChamberPost blog quotes Roll Call regarding the possibility of a troubling Democratic legislative strategy in the Senate on EFCA:

As Senate Democrats struggle to hammer out a compromise bill on union organizing, Majority Leader Harry Reid (D-Nev.) is sketching a process for railroading the bill through the floor as quickly as possible to prevent Republicans from rallying a major campaign against it, senior Democratic aides said...Cutting off debate on the bill would likely ignite a major partisan firestorm, and top Democrats will look to make their move as fast as possible, according to the Democratic aides. "This is not the kind of thing where we could have a long, drawn-out rollout. We'd have to say, 'Here's the deal,' and then get to the floor and get it passed before anyone can mobilize against it," one leadership aide said.

Ironic -- or disturbingly appropriate?  EFCA proponents disallowing the stakeholders (legislators) in a vote ample time to consider and debate the merits of a decision on legislation designed to disallow stakeholders (employees) in a vote ample time to consider and debate the merits of a decision on unionization.  Setting aside the particular elements of EFCA itself, this should be considered a troubling development in terms of our democratic (little "d") legislative process.

Regrettably, some of us expressed concern about this prospect some time ago: "'Workplace Democracy' Should Not Be Decided Behind Closed Doors."

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In Politico today, Steve Forbes opines that EFCA's "Binding arbitration is still bad for workers."  Forbes reviews and criticizes the potential "compromised" version of EFCA recently reported to be under consideration.  After noting again the problems with "quick elections," he then explains:

EFCA would allow federal bureaucrats to mandate contract terms on businesses and eliminate an employee’s right to vote on that contract. Those mandates on wages, benefits and workplace conditions would increase costs and burdens on employers resulting in massive layoffs and increased unemployment. These contracts would be binding for two years, which raises the question: In this economy, how many businesses would be able to last that long?

The whole piece is worth a read.  Forbes' conclusion:

The small-business community is committed to defeating this legislation and will not be fooled by attempts to soften the language to secure 60 votes only to reinstall poisonous provisions later in the process. And according to Service Employees International Union President Andy Stern, that’s exactly what union bosses intend to do.

 

It is clear that Big Labor will say and do anything to move this legislation forward and that it is not concerned with the integrity of the debate or whether businesses and our economy can withstand the results. Big Labor’s concern is not for workers but the bottom line of the organizations they have mismanaged.

 

Our bottom line is that it is nonnegotiable that workers must have a say on the terms of contracts that deal with their wages, benefits and workplace conditions. And it is nonnegotiable that workers have the right to vote via secret ballot and be afforded enough time to make an informed decision about unionization.

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As the attention has somewhat shifted from EFCA's card-check provision toward the bill's (equally or more) troubling mandatory interest arbitration provision, people have started to recognize the bill's many potential pitfalls for employers.  One critical issue gaining even more attention is the likelihood that interest arbitration proceedings might be used to resuscitate horribly crippled union pension funds on the backs of employers who have no responsibility for their deplorable current conditions. 

Many astute observers have long been warning about this crisis.  The Hudson Institute's Diana Furchtgott-Roth last summer published an eye-opening study, "Union vs. Private Pension Plans: How Secure Are Union Members' Retirements?"  Ms. Furchtgott-Roth's Executive Summary included these observations:

In 2005, the latest full year of data available, collectively bargained pension plans were more poorly funded than their non-union counterparts. Large plans, those with 100 or more participants, strongly showed this pattern. While 36.5 percent of nonunion plans were fully funded,1 only 19 percent of union plans met this criterion. The Pension Protection Act of 2006 considers funds underfunded, but not “at-risk,” if they are at least 80 percent funded. While nearly 90 percent of non-union plans met the funding threshold of 80 percent, only about 60 percent of union plans were not “at-risk.” Among collectively bargained pensions, around 11 percent were only 65 percent funded, low enough to put the larger national plans in the heavily-penalized “critical” category. Only two percent of non-union plans were in this condition.

Months ago, D.C. concrete contractor Brett McMahon noted in an Examiner Op-Ed, that "Card Check could kill my company and yours."  Around the same time, the American Spectator featured remarks by Mr. McMahon in a piece of its own, "A good time to start liquidating."

Now, yesterday's Wall Street Journal carried a piece entitled "Union Pensions in the Red," which editorializes on a particularly curious aspect of Ms. Furchtgott-Roth's findings:  that Union Officers' and staff pension plans are far out-performing the rank-and-file plans, and are not suffering the same critical underfunding status.  Per WSJ:

Poor management probably deserves a lot of the blame for the union decline, but the exact causes are a mystery. An even bigger mystery is that the unions do a far better job with funds created for their officers and employees than for mere workers. The SEIU Affiliates, Officers and Employees Pension Plan—which covers the staff and bosses at its locals—was funded as of 2007 at 102.2%. The plan for the folks at SEIU international headquarters was funded at 84.8%.

More coverage of these issues:

• "Link Between Failing Union Pensions and Card-Check" -- TheTruthAboutEFCA.com
• "The Shame of Unions: Massively Underfunded Pensions" -- Reason Online
• "Card-Check: Debt-Ridden Union Pensions Behind EFCA Push" -- ShopFloor.org
• "Card Check 'Lite' Is a Non-Starter" -- (Steven Law) on CBS News

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Today's Atlanta Business Chronicle contains a piece on EFCA suggesting "Revision may speed passage of union bill" (subscription).  McKenna Long & Aldridge partner and EFCA Report blogger Richard Hankins is quoted throughout, including the following passages:

The first major development on the proposal in months occurred when moderate Democrats in the Senate this month decided to drop the bill’s so-called “card-check” provision allowing unions to organize at a work site as soon as a majority of workers signed a card saying they wanted a union. The card check essentially would have replaced secret-ballot union elections.

For months, business groups assailed the provision as an affront to the liberties of American workers, and it became a lightning rod for criticism not only among congressional Republicans but moderate Democrats.

Even though Democrats now hold a 60-40 advantage in the Senate, the card-check threatened the bill’s chances of passage, said Richard Hankins, a partner in the Atlanta office of McKenna Long & Aldridge LLP who specializes in labor relations.

“This compromise is to get past a filibuster,” he said.

And, echoing an earlier blog post here:

“What if we had to vote on our political leaders with five days’ notice?” Hankins said. “Many employees are simply not going to know ... anything about the union or its effect on their jobs.”

Finally, regarding the ultimate fate of the bill:

Hankins said getting rid of card check makes it more likely that the Employee Free Choice Act will clear the Senate.

But he said the more liberal House of Representatives probably still will pass the original version of the bill, with the card-check provision intact, leaving the measure’s final fate up to a joint House-Senate conference committee.

“The concern is that card check would come back at that point and work its way into law,” he said.

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On July 22, 2009, Rep. Zoe Lofgren (D-CA) entered an extension of remarks into the Congressional Record in support of the Employee Free Choice Act.  Rep. Lofgren submitted a July 20, 2009 speech by former NLRB Chairman William B. Gould IV to the 58^th Annual Conference of the Association of Labor Relations Agencies.

Chairman Gould served on the NLRB during the Clinton administration, and is a Stanford University law professor emeritus. He also has long been a critic of EFCA as currently drafted, while remaining an outspoken voice in favor of significant labor law reform. His comments earlier this week continue to reflect that position:

This significant legislative proposal warrants dispassionate examination in an arena which has been too frequently divided and polarized. My sense is that the bill even with proper amendments—and I am quite confident that if it is enacted it will be amended—will have a considerable impact on the workplace. EFCA and labor law reform contain some of the assumptions that I have held for more than four decades, i.e., that the Act is plagued with lethargic enforcement, creaky and convoluted administrative procedures and ineffective remedies, that it is not working well and that, as a result, some employees who wish to join unions are unable to do so.

As talk of “compromise” or alternatives emanate from Washington, Chairman Gould’s is likely to become a more important voice -- should EFCA’s proponents have any serious interest in truly intelligent and “dispassionate examination” of the issues involved. Chairman Gould’s prior criticisms of EFCA have consistently focused on Sections 2 and 3 -- the card-check and interest arbitration provisions.  But regarding Section 4, which would increase penalties against employers during organizing efforts and negotiations, Chairman Gould said:

I think that the Employee Free Choice Act is right on the mark in establishing a treble damage award for back pay. For too long, an award of back pay minus interim earnings has been regarded by everyone involved on all sides as a license fee for employer misconduct because back pay is cheaper than a union contract.

 

EFCA also provides for fines up to $20,000 for each employer violation as well as new contempt sanctions. And again, I think that the new law has it right in expanding and making more effective the Board’s injunctive authority for employer unfair labor practices—in much the same manner that the statute has established them for union unfair labor practices since the Taft-Hartley amendments.

Regarding the remainder of the bill, however, Chairman Gould still believes “there is much more room for debate.” Reiterating that he finds card-check an inferior method of selection, he endorses the current thoughts being circulated regarding quicker elections:

The answer here is to both expedite elections—to require that they be held within a couple of weeks of the union’s petition, as is done in the provinces of Ontario and British Columbia—and to reverse Supreme Court precedent excluding non-employee union organizers from company premises so that they can carry their side of the message to employees more effectively in the run-up to the ballot itself.

Likewise, Chairman Gould suggests that mandatory interest arbitration as a default proposition for all new bargaining relationships is over-reaching:

However, EFCA-sponsored interest arbitration, in contrast to the grievance or rights variety, is relatively untested in the private sector in the United States. In Canada, which has first contract arbitration in most provinces, the process is rare and used sparingly (except in Manitoba where it is automatic after a specific time period). The conundrum is that the potential for a mechanism like this must be available to rescue bargaining which is at a stall, and yet its mere availability can undermine the collective bargaining process itself which is furthered by the Act.

 

The proper approach here, it seems to me, is to provide that the mediator—perhaps in consultation with the NLRB itself—should certify after extensive mediatory efforts that collective bargaining is either at an impasse or dysfunctional. As it presently stands, EFCA simply allows for arbitration to be invoked after three months of collective bargaining and subsequent mediation. Not only is this period of time too abbreviated, but by spelling out a specific period of time after which arbitration is automatic, it encourages the parties to maneuver in anticipation of arbitration in a way which can erode the voluntary collective bargaining process. Moreover, this approach fails to take into account the fact that both sides are frequently learning for the first time as they put together their very first collective bargaining agreement.

 

Arbitration must be used sparingly, although it should remain available in the final analysis so as to shore up a relationship which might otherwise disappear.

Chairman Gould concluded his presentation with a number of additional reform recommendations -- encouraging NLRB rule-making; unfreezing jurisdictional guidelines; allowing expansion of state labor law; eliminating batching of NLRB appointees; and reducing the size of the Board, while extending terms and barring re-appointment.   A thorough read of this piece by all serious management representatives, advocates or attorneys is a must.

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Two interesting viewpoints on labor law reform appeared today in today’s online edition of Politico. 

Will Marshall, President of the Progressive Policy Institute, wrote an article entitled “Setting the Stage for a ‘Grand Bargain’ on EFCA.” In it, Mr. Marshall, a centrist Democrat, suggested a “modified EFCA” that would address concerns raised by both labor and management. His proposals:

·       Use majority sign-up to trigger an expedited election. This seems to be what the Senate moderates have in mind. Holding secret votes within, say, a month after the cards are counted would limit the time available to either side to strong-arm workers.

·       In lieu of binding arbitration, authorize the NLRB to make workers whole when an employer fails to bargain in good faith. For example, the board could order employers to offer compensatory relief based on lost wages and benefits, in comparison with equivalent labor agreements.

·       Guarantee unions fair access to workers. One way would be to limit the number of meetings employers can declare mandatory during an organizing campaign.

Mr. Marshall asserts his belief that these changes are necessary because: 

[T]here is wide consensus that U.S. labor laws, framed in America’s industrial heyday, need to be modernized to fit the smaller, more fluid and more collaborative workplaces that now dominate the U.S. economic landscape.

Specifically, observers on all sides agree that the NLRB . . . takes far too long to reach decisions and that the penalties for ignoring its rulings are too weak.

The other view can be found in the comments following Mr. Marshall’s article. John Raudabaugh, who served as an NLRB Member from 1990-93 and is now a partner at Baker & McKenzie, wrote:

Labor's density has declined for many reasons including less commitment on organizing, failing to improve value-added services to "sell," and internal union disharmony. Refusing to acknowledge merit over lowest-common-denominator and fostering an entitlement culture is a non-starter. To reward failure with legislative imprimatur is absurd. However, if our elected representatives feel obligated to beltway centric labor: (1) any new penalty system must be applicable to labor too and for all violations of any kind at any time, (2) correct the wrongly decided Enmons loophole to the Hobbs Act, (3) re-introduce the TEAM Act to make lawful a collaborative, non-adversarial workplace, (4) provide hands-on free mediation assistance to first contract bargaining for unions and employers upon request, (5) merge the FMCS and the NLRB to provide seamless service, (6) reorganize representation case processing at the NLRB under a central intake, hearing, and decisional process at headquarters utilizing videoconferencing and related technologies removing regional office involvement, (7) make NLRB appointments one term only for seven years or consider creating a specialized Article III court to handle all workplace related matters including controversies arising under the NLRA, OSHA, and EEO related statutes. . .  hold hearings and conduct studies by meeting with senior agency staffers individually to solicit their ideas.

Mr. Raudabaugh expressed many of these ideas in Senate testimony on April 2, 2008. 

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The recent suggestions that Senators may jettison card-check, or “majority sign up” (or whatever we’re supposed to call it these days) from the Employee Free Choice Act comes with word that it may be replaced by a mandate that elections be held within five or ten days of the date a petition is filed. Criticism of EFCA seemed immediately to shift to the interest arbitration provisions, but this notion of quick elections warrants further examination. We offer the following general observation, in no particular order:

1. Imagine if the President of the United States had the power to just announce on any given day that there would be an election in five days and that the people would be bound by the results for the next four years. Citizens would be outraged because there would not be ample opportunity to learn about the candidates and examine their platforms. Under the reported EFCA compromise, a labor union would be able to choose the date on which the petition is filed after collecting signed authorization cards from just 30% of the workforce. In the words of Nathan Newman, Policy Director for Progressive States Network: “Union secretly collects cards, announces them and calls a snap election for five days later.”  Up to 70% of the workforce would have to make a decision within five days whether to give a labor organization they may never even have heard of the right to become their exclusive workplace representative. The interest arbitration provisions of EFCA would likely forbid any decertification for at least two years.

2. U.S. employment law typically encourages providing employees with information about their rights. Our friend Dan Schwartz at Connecticut Employment Law Blog has been reporting on the Equal Employment Opportunity Commission’s recent guidance on separation and severance agreements. In that guidance, the EEOC notes that the validity of a waiver of rights under anti-discrimination laws will turn on:

• whether [an agreement] was written in a manner that was clear and specific enough for the employee to understand based on his education and business experience;
• whether it was induced by fraud, duress, undue influence, or other improper conduct by the employer;
• whether the employee had enough time to read and think about the advantages and disadvantages of the agreement before signing it; [and]
• whether the employee consulted with an attorney or was encouraged or discouraged by the employer from doing so.

In fact, for a waiver of age discrimination claims to be valid, the employee must be given at  least twenty-one days to consider the agreement (or at least forty-five days in the case of an exit incentive or other group termination program) and then must be given seven days within which to revoke the agreement after signing it. Does it really make sense to force an employee to decide whether to waive the right to self-representation within five days?

3. While EFCA proponents would like the public to believe that employers create interminable delays in union elections, the truth is that in 2008, the National Labor Relations Board conducted initial elections in union representation elections in a median of thirty-eight days from the filing of the petition.   95.1% of all initial elections were conducted within fifty-six days of the filing of the petition. While there may be cases of abuse by some employers, we note that few governmental agencies operate with this level of efficiency. Current NLRB policy is to conduct elections within forty-two days of petition-filing. During that time period, the parties discuss, and litigate, if necessary, the scope of the eligible voting unit. This discussion period is important in order to avoid litigation. In 2008, 91.8% of all elections were conducted pursuant to election agreements reached without the need for litigation. In a five or ten day election cycle, all issues regarding the appropriate bargaining unit would have to be resolved after the election. This would likely increase the instances of litigation, as the party behind in the vote count would have no incentive to compromise.  It would create uncertainty in the workforce for a considerable amount of time after an election. And it would be a tremendous waste of government resources because the agency would likely have to invalidate numerous elections conducted in inappropriate units. 

Of course, the reported expedited election proposal is not really about giving workers the opportunity to make informed choices or to avoid litigation. It is, as Mr. Newman admits, about giving unions an opportunity to increase their membership though ambush and silencing opposing views.

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Unfortunately, our Twitter feed is experiencing technical difficulties, which has slowed the pace at which we have been able to distribute news about developments.  While we wait for the Support team to get us back and tweeting again, here are a few items from around the web:

U.S. Chamber of Commerce General Counsel Steven J. Law opines that "Card Check 'Lite' Is A Non-Starter" at CBS News.com, in part, because:

... the real "poison pill" of forced government arbitration is the way it would spread union pension fund financial problems to healthy companies and workers. Many union-run pension plans are headed toward insolvency because of risky real estate deals and politicized investing. The Card Check bill would empower government arbitrators to force newly-unionized employers into these pensions - putting them on the hook for huge funding shortfalls. Under pension law, a business owner could be stuck paying benefits to people who never worked for them.

And because pension liabilities are included on company balance sheets, a previously healthy firm could have its credit rating ruined overnight by being dumped into a collapsing union pension.

The Alliance for Worker Freedom today sent this letter to President Obama, Secretary of Labor Hilda Solis and all members of Congress:

It is very rare to create a new contractual agreement where none previously existed through arbitration. Arbitration is a last resort for labor and business if common ground cannot be found. EFCA will fundamentally change the arbitration process, shifting the power from private business and workers to a partial governmental entity (i.e. a government appointed arbitrator).

Current arbitration legislation is founded on the principle of mutual consent. Section 8 of the National Labor Relations Act (NLRA) requires both employers and employee representatives to meet and bargain “in good faith with respect to wages, hours, and other terms and conditions of employment,” correctly encouraging negotiating members to compromise. Mandating governmental intervention changes the rules of the game, and thus, how negotiations will take place.

And TheTruthAboutEFCA.com expands upon our prior post regarding the evolving semantics of the debate:

Many in the employer community are concerned that proponents of the sadly misnamed Employee Free Choice Act have seized on a confusingly timed bit of news suggesting the “card check” provision of the bill is dead. That’s not the case — we hear constant stories about folks up on Capitol Hill trying to re-brand EFCA because it has become, in the words of Sen. Harry Reid, “toxic.”

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Theories abound on the motivation of the sources behind Steven Greenhouse's piece in last Friday's New York Times announcing that Senate Dems might be ready to give up on EFCA's "card check" provisions.   The timing was strange enough, but we also reported (via Twitter) early that morning that Senate staffers were denying the report.  Was the "leak" regarding card check a trial balloon?  Was it some other strategic effort by labor and some of their legislative allies?  

The other day, the TruthAboutEFCA.com ran a piece, paying literary allusion to "The Usual Suspects," analogizing "the greatest trick [EFCA proponents] ever pulled was convincing the world [card-check] didn't exist": 

But now it seems that rumors of card check’s death have been greatly exaggerated for a specific purpose (or several). Our friends at Shopfloor.org have been tracking the mysteriously timed pronouncement of card check’s death, even while Beltway insiders say it’s not so. So herein the latest analysis from Shopfloor:

The flogging of the “Senate Dems drop card check” story to the New York Times certainly brought renewed attention to the Employee Free Choice Act’s political prospects, which was probably the goal of the labor lobbyist(s) who were pushing the news. At least people are talking about the bill now instead of just assuming the whole thing is dead. Smart.

Plus they have a roundup of more analysis.

All this makes sense: have a bad product that people don’t like? Just tell them the big lie. Tell them it doesn’t exist. Nothing to see here, folks. Move along.

Card check is not dead and EFCA still contains binding arbitration — a method that would allow government bureaucrats to effectively run employment decisions for small business. No,EFCA is not dead, and neither is the fight against it.

The response to the Times story was immediate and forceful.  Business interests and EFCA opponents quickly condemned the possible development and began to focus more intense criticism on EFCA's mandatory interest arbitration provisions. 

Lest it be lost in the shuffle, however, there appears to have been a simultaneous increased effort on the part of labor to re-brand the mechanism proposed by Section 2 of EFCA as "majority sign-up."  While that has been terminology used by supporters for some time, and increasingly as labor realized how politically toxic the term "card-check" had likely become.  But in the wake of Friday's developments, there appears to be a stronger and more concerted effort to change the vocabulary of the discussion on this particular issue -- perhaps to soften it politically while we await the ultimate announcement of what comes next.  We shall see as the conversation continues. 

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More following Friday's New York Times report that Senate Dems are considering dropping card-check from EFCA, but retaining the troubling mandatory interest arbitration provision. 

At Commentary, Jennifer Rubin continues her coverage of EFCA developments, expressing skepticism that any such "compromise" would fly: 

If there is such a deal, those Red state Democrats will be back on the hot seat. With unemployment heading for double-digits, will they vote for “card check lite”? So long as Big Labor is proposing that government-appointed arbitrators would have the power to set terms and conditions of employment for first labor agreements and that employers’ right to control their private property be sacrificed, you can expect a battle royale, including a filibuster from opponents.

Following up, at Slate, Mickey Kaus hits the nail on the head, laying out a critique of interest arbitration we included in our earlier white paper on EFCA:

Opponents may need to come up with a new name for the bill (though "card check" was working pretty well for them). How about "federal pay determination"?  Keep in mind that not only does the apparent "compromise" propose abandoning the hoary idea that wages should be set in the marketplace, it also abandons the New Deal's substitute idea that wages should be set in labor contest where unions threaten to use their strike power and management threatens to survive a strike. Unions seem to have given up strikes. Instead they want to authorize an official--maybe even an actual federal bureaucrat--to simply swoop down and impose what would undoubtedly be a wage increase. That's more akin to FDR's notorious, failed National Recovery Act--except the NRA at least let industries set their own rigid wage scales.  ...

Note also that the arbitration provisions give now-unorganized workers a new, powerful incentive to unionize: Vote for the union, wait a few months, and an arbitrator will fly in and give you a raise. No strike. No fuss. No muss.

Kaus includes a link to his April piece wherein he recommended that business and other opponents begin to think of their own elements for inclusion in any labor law reform bill.  Well worth repeated reads now.

Finally, at NAM's Shopfloor.org, Carter Wood articulates an interesting possibility:

Here’s a theory, admittedly paranoid and probably giving labor too much credit: The NYT story represents a two-part jujitsu strategy by labor. Labor claims outrage at this “compromise,” but the removal of card check prompts business to emphasize how toxic the binding arbitration provisions are. THEN, labor agrees to drop binding arbitration too, leaving business sputtering about how the remaining legislation is still bad but struggling to articulate why. With business politically neutered, the Senate passes a bill with ambush elections, a gag on employer involvement in the election process, and increased penalties. Unions still wind up with a new ability to intimidate employees into joining unions and an election process slanted toward labor.

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Since the New York Times story yesterday, we've been following the developments regarding the supposed intention of Senate Democrats to drop the card check provisions from EFCA.  Our Twitter feed (see below right) has been compiling theories from all over following our Tweet early yesterday that Senate staffers were denying the leaked reports.  Other comment from around the web:

CBS News blog The Hotsheet reports that both proponents and opponents of the bill were quick to express doubt and/or displeasure with the Times report:

But representatives on both sides of the issue signaled in interviews with Hotsheet Friday that they are skeptical of the Times report. Josh Goldstein of American Rights at Work said in an interview that it is "premature to make any assumptions about what's going on in negotiations when the people who are in those negotiations are clearly stating that there is no deal."

"As far as I know, majority sign up is still on the table," he said. "And we're still fighting for it."

And Mark McKinnon of the Workforce Fairness Institute, a business group, told Hotsheet, "I don't think it's so much a compromise as it is a trial balloon."

At RedState, Brian Faughnan warns that the elimination of card check from the bill would address just one of EFCA's numerous serious flaws, leaving the bill's mandatory interest arbitration provision intact:

Calling this ‘binding arbitration’ is a misnomer. The phrase typically conjures images of an impartial expert deciding claims based on a pre-existing agreement. In this case you would instead have a bureaucratic ‘expert’ deciding on all provisions of a labor agreement. In a best-case scenario, workers and employers would be forced to adopt some least-common-denominator version of the contract governing other businesses in the same sector. In that case, say goodbye to innovation. In a worst-case scenario, you’ll see schills for labor or industry impose contracts specifically designed to further an agenda.

Similarly, an editorial in the Denver Post urges Sen. Michael Bennet (D-CO) to take a public stance on the bill, opining that the mandatory interest arbitration provision is the bill's larger flaw:

While we opposed the card check portion of the bill — the right to a secret ballot is a cornerstone of our democracy — it was never our biggest worry.

By far, the most economically destructive provision in EFCA is one that imposes binding arbitration if the parties fail to reach a contract agreement within 90 days.

This, in effect, means unions have zero incentive to bargain in good faith. They do have an incentive to make over-the-top demands, knowing they would be the starting point in arbitration hearings.

And worse yet, it puts government in the wage control business and has the potential to destroy companies — particularly smaller businesses.

At The Hill's Blog Briefing Room, Michael O'Brien posts that an un-named "anti-EFCA group" has released a poll indicating that mandatory interest arbitration is as unpopular a notion as card check:

60 percent of voters nationwide oppose the binding arbitration portion of EFCA — including 43 percent of the country that strongly opposes it, according to internal polling done by one of the groups working against EFCA.

Finally, TPM carries a piece relaying a quick opportunistic attack by Rep. Joe Sestak (D-PA) against Sen. Arlen Specter (D-PA), whom he hopes to unseat in the Democratic primaries:

"As an original co-sponsor of the Employee Free Choice Act, I strongly support the legislation as it was originally written," says Sestak. "Arlen Specter, however, announced that he not only opposed Employee Free Choice, but would prevent it from coming to a fair up-or-down vote."

"Arlen will have to explain to working families across Pennsylvania why he took the side of every Senate Republican to oppose this legislation as originally written." 

It seems that Rep. Sestak may have forgotten that long before he announced his intention to run for Sen. Specter's seat, he introduced an alternative to EFCA that eliminated card-check from the mix.

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Was a New York Times report yesterday about the demise of card check -- Section 2 of the Employee Free Choice Act -- entirely accurate, premature or something different altogether?

At the TAPPED blog, Tim Fernholz of progressive journal The American Prospect asks:

As an inside-baseball side note, I'm interested in why Steve Greenhouse, the Times labor reporter, went with this story now. There hasn't been an official announcement, and Harkin's press secretary wouldn't confirm it, and those same half-dozen labor-friendly senators have been talking about jettisoning card check for months. What was the decision point?

This has led some -- including David French of the International Franchise Association and Rob Green of the National Retailers Federation --  to speculate whether this "leak" to a veteran labor relations reporter at the Times truly indicates surrender on the issue of card check -- or is rather a "trial balloon" or similar political strategic ploy.   Sam Stein of The Huffington Post notes:

The process was supposed to go on in secret, but discussion were leaked to the Times on Thursday. An anonymous official with the AFL-CIO, was quoted in the piece prompting speculation that the union federation was responsible for the leak.  

Regardless of the current status of this provision in the bill, SEIU President Andy Stern has made clear in a statement that labor expects a litmus test vote on card check before 2010 elections: 

"As we have said from day one, majority sign-up is the best way for workers to have the right to choose a voice at their workplace. The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority sign-up provision in the final bill or by amendment in both houses of Congress."

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Today's New York Times reports that moderate Democrats have agreed to a "compromise" on the Employee Free Choice Act that they believe would garner the sixty votes needed to overcome a filibuster. The compromise would reportedly remove the card-check requirement from the bill and replace it with a requirement that elections be conducted within five to ten days after the NLRB receives a petition.

There is no word yet on when the revised measure would be formally considered, though the Times indicated that several other changes are still under consideration. Those changes include some form of union access to employer facilities and a ban on mandatory campaign meetings by employers.  Compulsory interest arbitration apparently would remain in the bill.

Senator Blanche Lincoln (D-AR) and Senator Arlen Specter (D-PA) are said to support the compromise language. This compromise is not likely to be welcomed by the business community. But it also seems to create numerous practical problems.  For example, any challenges to the propriety of a union petition would have to be resolved after employees vote.  This is likely to lead to an increase in such challenges and a great deal of uncertainty among workers.  Additionally, the compromise would require a massive overhaul of current NLRB procedures and staffing to accommodate the flurry of activity that must occur prior to an election being held. 

More to follow here (and via our Twitter feed) as this story develops.

Others following the story this morning:

• "Card Check: NYT Reports 'Compromise', i.e., Disguised Card Check" -- NAM's ShopFloor.org
• "AFL: Dropping Card Check is 'Normal Process'" -- Politico

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Crain's Chicago Business today featured a number of items regarding the Employee Free Choice Act, including an interview with Senior VP for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce Randel Johnson.  The whole interview is worth a read, but a few choice nuggets:

CRAIN'S: Why the big emphasis on labor law?

MR. JOHNSON: When the Democrats came back into power, we knew there was a change in philosophy from the previous administration and we expected they would revisit employer regulations. But even I've been shocked at the massive number of bills and what lies ahead, and it's only a few months into the presidency. It's a radical rewrite of American employee laws. 

  *  *  *

When do you expect movement on some of the pending legislation?

Everything is jammed up behind the Employee Free Choice Act, and it will remain pending until EFCA is resolved or taken off the table.

  *  *  *

Beyond legislation, what else is coming?

Business owners should look for new regulations on ergonomics and more aggressive enforcement of the OSHA general duty clause that requires employers to provide a safe workplace. Look for more aggressive enforcement of overtime laws. And we are closely watching the effort of enforcement agencies to narrow the definition of who is an independent contractor. It's not yet legislation, but believe me, it's coming. Overtime and payroll taxes, in particular, will be areas of huge exposure.

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Our Twitter page is now allowing us to pass most of these items along in near real-time.  But in case you aren't yet following us there, we'll continue to publish these media round-ups regularly.

LRIOnline has a piece expanding upon the meme also published advanced this week by Crain's Workforce Management -- that the NLRB appointed by President Obama might advance some variation of EFCA's elements by administrative rule-making even if the legislation were not to pass:

Wilma Liebman has made no bones about her support for reforming the nation’s labor laws generally, and she welcomes the debate on the Employee Free Choice Act specifically. Once she has a Board majority she will have the full power to implement massive labor law reform without the need for a single Senate vote.

Consider, for example, the vote period. The current 42-day vote window that unions complain about so wildly is completely Board created. The statute says nothing other than the Board will conduct an election. It could just as easily be 7-days or 14-days or 21-days after the petition is filed. The time limit is just a target, but the Board does a great job of meeting the 42-day target today and there is no reason to believe that they couldn’t meet a quicker target. So if unions can’t get a compromise on card-check, no problem. Just get the Board to shrink the vote window down to 7 or 14 days, which is effectively the same thing.  

Human Events has more commentary from Sen. John Thune (R-SD) who participated in a recent conference call to address the status of the Act: 

...Sen. Thune stressed the importance of not accepting compromise. Thune stated “the cloture vote is the critical vote” because – if the measure gets to the floor, Democrats may yet be able to muster the votes necessary to overcome a Republican filibuster. Even if the Employee Free Choice Act was revised to pass the cloture vote it “is going to move further to the left as you get into conference with the house…with pretty much most of the elements of the original bill when it comes out of conference.”

Thune is also quoted, along with labor relations analyst Bryan O'Keefe in today's Washington Times, regarding the impact on EFCA of Richard Trumka's announcement that he will seek the presidency of the AFL-CIO:

Analysts say Mr. Trumka and the AFL-CIO think now is the perfect time to win favorable changes to labor laws.

"EFCA would be a gold mine for the union right now," said Bryan O'Keefe, an independent labor specialist. "The intimidation would be rampant with this thing. And it's an easy way to boost union membership significantly."

Sen. John Thune, South Dakota Republican, predicted Thursday that Democrats would have a hard time passing the "deceptively titled and dangerous" EFCA, given divisions within the Democratic caucus and the absence of ailing senior Democratic Sens. Robert C. Byrd of West Virginia and Edward M. Kennedy of Massachusetts.

"This thing will hit businesses both large and small," Mr. Thune said. "Democrats and labor are working on a compromise, but there cant be a compromise on things like card check and mandatory arbitration."

Finally, the Alliance for Worker Freedom has launched "What Is Card Check?" -- an interactive online look at related issues. 

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If you've been following us (or Daniel Schwartz) on Twitter, you are likely aware that President Obama has named the nominee for the third and final vacant seat on the NLRB -- and has finally actually nominated the individuals he identified in April for the other two.  Brian Hayes has been tapped to join SEIU Associate General Counsel Craig Becker and Buffalo labor attorney Mark Gaston Pearce as Members of the National Labor Relations Board.  The press release issued by the White House describes Mr. Hayes as follows:

Brian Hayes, Nominee for Member of the National Labor Relations Board
Brian Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP).  Previously, Mr. Hayes was in private legal practice for over twenty-five years. His practice was devoted exclusively to representing management clients in all aspects of labor and employment law. He has represented employers in scores of cases before the National Labor Relations Board, the Equal Employment Opportunity Commission, and various state fair employment practice agencies. He has served as chief trial counsel in the full range of employment claims in both state and Federal courts. Mr. Hayes has extensive experience in negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. He has argued a number of significant labor cases before the Federal Courts of Appeal; and regularly counseled clients regarding compliance with the full range of state and Federal labor laws including OSHA, FMLA, Title VII and the Fair Labor Standards Act. Before entering private practice, Mr. Hayes clerked for the Chief Judge of the National Labor Relations Board and thereafter served as Counsel to the Chairman of the NLRB. In addition to his private practice Mr. Hayes was a member of the adjunct faculty at Western New England Law School where he taught classes in Labor Law, Collective-Bargaining, Arbitration and Employment Litigation. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center. 

What remains to be seen is whether or not these three gentlemen will be confirmed by the Senate -- perhaps not so coincidentally amid all the talk about the future of EFCA, and the possibility of a sympathetic Board expanding the use of card-check without legislation -- or whether the President will have to make recess appointments. 

This Labor Board is certain to reverse Board law set forth in decisions passed during previous administrations, and will do so in a manner expanding the rights of unions and workers.  We have previously reviewed many of the possibilities in posts here and here.

More on the issue:

• "Card Check and the National Labor Relations Board" -- ShopFloor.org
• "Hayes to be Republican Nominee to NLRB" -- Workplace Prof Blog 
• "Third Nomination to NLRB" -- Ross Runkel's LawMemo

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In addition to our writing here, EFCA Report is now regularly posting on Twitter.  Follow us at www.twitter.com/efcareport.

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The current issue of Newsweek magazine contains a strongly titled opinion piece, "Unions: We're Better Off Without Them."  The author, Kevin Kelly, C.E.O. of Emerald Packaging in Union City, California. recounts his experiences with two "exhausting, deeply distracting" union representation campaigns.  He lays out in sensible, composed terms why many small business owners might prefer to operate without a union representing their employees, and he expresses his concerns about the evolving regulatory environment under the Obama administration in this regard.

Midway through the article, however, Mr. Kelly subtly shifts gears, and articulates sympathy for the most common arguments in support of EFCA:

Others are taking a more activist approach. One small business person wrote to his senator urging her to vote against the legislation, or at least amend it so that some sort of election period is preserved. "My argument is that the company should have at least some period to make its case," he says. Like many businesspeople, he worries that a union organizer might bully an employee into signing a card. I can't help but feel that prevention is the better route though. When, not if, a bill passes, I'd rather be a less susceptible target thanks to good employee relations.

Years ago that union drive certainly woke me up. Almost overnight we quickly overhauled our employee relations. We put a pay scale in place so that raises occurred in a timely manner and not just at the whim of a manager. We hired a human resource manager to handle day-to-day employee issues, tackling problems like reimbursements for health care costs. I began to meet regularly with employees, including periodic meals with each of our three shifts. These meetings often last two hours—or more—as employee's list ways they think the company could be improved, often offering ideas to boost productivity or quality.

I must confess, unlike many businesspeople, I do have a soft spot for the spirit of EFCA. While I can't agree with doing away with elections, I do accept that six weeks is far too long. If a company can't make its case in three weeks, then it likely deserves the union it gets. Six weeks gives employers too much time to wear employees down. Forcing workers to sit through meeting after meeting, bashing the union, hinting that the company might move or close if the union wins, probably is the corporate equivalent of the fear many businesspeople carry that union organizers might manhandle our employees into signing cards.

There is nothing inconsistent in Mr. Kelly's assertions here and his objection to EFCA, or his desire to operate union-free.  Indeed, many of his insights should be extremely helpful to like-minded small business owners. 

One might also read the last few paragraphs, however, and ask what special insight Mr. Kelly might have into the current efforts underway to make EFCA more palatable to 60 Senators.  Many of the positions referenced here -- preservation of the secret ballot, quicker elections, restricting employer meetings -- are elements frequently discussed in connection with possible substitute labor law reforms. 

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Al Franken appears set to be sworn in as U.S. Senator on Tuesday, July 7.  EFCA steward, Sen. Tom Harkin (D-IA) said last month that he was waiting on Franken's seating to introduce the "compromise" version of the bill that he has been working on with Democrats and organized labor.  That has led many to speculate that a revised EFCA may be brought to the Senate floor in the next week or so.  Politico notes today:

Sen. Tom Harkin (D-Iowa), sponsor of the labor-backed Employee Free Choice Act, has been telling union leaders that Franken’s presence could accelerate the push to create a compromise bill more quickly than Reid’s 2010 timeline, according to people familiar with the situation.

Still, as we noted last week, the Politico piece also identifies numerous hurdles which remain for any Democratic legislative priority, including EFCA:

Democrats are short two ailing members — Sens. Robert Byrd (D-W.Va.) and Ted Kennedy (D-Mass.) — two legislative titans who simply can’t be counted on to show up for any given vote at this point in their lives.

Then there are a handful of members on Reid’s right flank — Nebraska’s Ben Nelson, Louisiana’s Mary Landrieu, Indiana’s Evan Bayh and wild-card independent Joe Lieberman of Connecticut — who tend to be loyal but could buck him on health care reform or climate change legislation.

Add endangered 2010 candidates Blanche Lincoln (D-Ark.) and Michael Bennet (D-Colo.), and the number of rock-solid cloture votes in Reid’s pocket drops to between 52 and 54.

The National Electrical Manufacturers Association (NEMA) has identified a number of Senators who have either expressed opposition to, or concern with, EFCA in its current form, and asked its membership to reach out to them:

While it is important that every Member of Congress hear from manufacturers (and distributors) on this important issue, it is critical to contact the following Senators during the July 4th recess period to urge them to oppose all votes (including cloture) on EFCA in any form:

Senator Evan Bayh (D-IN), phone 202-224-5623, fax 202-228-1377
Senator Michael Bennet (D-CO) phone 202-224-5852, fax 202-228-5036
Senator Kay Hagan (D-NC) phone 202-224-6342, fax 202-228-2563
Senator Mary Landrieu(D-LA) phone 202-224-5824, fax 202-224-9735
Senator Blanche Lincoln (D-AR) phone 202-224-4843, fax 202-228-1371
Senator Ben Nelson (D-NE) phone 202-224-6551, fax 202-228-0012
Senator Mark Pryor (D-AR) phone 202-224-2353, fax 202-228-0908
Senator Arlen Specter (D-PA) phone 202-224-4254, fax 202-228-1229
Senator Mark Warner (D-VA) phone 202-224-2023, fax 202-224-6295
Senator Jim Webb (D-VA) phone 202-224-4024, fax 202-228-6363

Regrettably, only Specter and Pryor have been reported to be involved in Sen. Harkin's "compromise" discussions.  Since those conversations also appear to involve the AFL-CIO, but not a single member of the business community or Republican caucus, one might seriously contest the use of the term "compromise" to describe what is truly going on.  Hopefully, the American public will at least have the opportunity to hear and consider a sober, reflective debate about the respective positive and negative elements of any proposed labor reform bill.

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#EFCA  #efcafail

By some accounts, the most significant revision of U.S. labor policy in decades may be passed by the Senate after a backroom deal, with little, if any, formal debate.  

We’ve been blogging about EFCA since early 2007, and, while we make no pretense about our management bias, we’ve tried to maintain a civil tone.   We’ve reported developments and offerred insight, but we’ve tried not to be inflammatory. Enough people on both sides of the issue are working that angle. Pardon us then for this temporary departure from our usual form.

For months now, it has been assumed that even with sixty members in the Democratic caucus, the Employee Free Choice Act was doomed to fail in its original form.  The word from Washington has been that Sen. Tom Harkin (D-IA), Sen. Arlen Specter (D-PA), and others have been discussing "compromises" to the original bill.  Details about those discussions have been hard to come by.   Now that the sixtieth caucus member is about to be seated, we hear that a compromise is almost complete, and that the new bill may pass the Senate within a few days of being introduced. 

Does no one in Washington see the irony in a backroom deal on workplace democracy? Collective bargaining is supposed to be about giving workers a voice in things that affect them through representatives of their own choosing. Who is participating in these closed door meetings? How are the Senators ascertaining that the voices they hear are the true voices of workers? And what about the business community? Shouldn’t they have a voice in this legislation, which may or may not result in wages and benefits being dictated by an arbitrator? The Senate has long been hailed as the most deliberative legislative chamber. It should conduct those deliberations openly – especially on issues that purport to address workplace democracy.

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#efca

The Denver Post reports that Sen. Michael Bennet (D-CO), who was appointed to fill the unexpired term of Interior Secretary Ken Salazar, is still not commenting about his position on the Employee Free Choice Act. 

Conservative blogger Mount Virtus further chronicles the Senator’s artful dodging of the question.

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TPM and NPR (and EFCA Report) broke the news over a month ago.  But today, with the Al Franken development front and center, Rep. Joe Sestak (D-PA) appears to have made it official.  The Congressman will run against Senator Arlen Specter (D-PA) in the Pennsylvania Democratic Primary for Senate in 2010.  Many have been speculating that Sestak's support among those on Specter's left flank might put pressure on Specter to either (a) express more support for EFCA in its current form, or (b) bring forth an alternative palatable to organized labor in short order.

Many forget, however, that Rep. Sestak already has introduced an alternative to EFCA -- the National Labor Relations Modernization Act (H.R. 1355).  Introduced days before Rep. George Miller (D-CA) and Sen. Tom Harkin (D-IA) introduced EFCA in the 111th Congress, Sestak's bill would

1. provide for mandatory arbitration following a 120-day mediation period, if after an initial 120 days of bargaining failed to result in an agreement;
2. increase penalties against employers (similarly to EFCA's proposed changes); and
3. require an employer to provide equal access to the employees to union organizers once an election is ordered.

With talk of an EFCA "alternative" possibly being pushed to the Senate floor as early as next week, the timing of Sestak's "announcement" would seem directed toward impacting this issue more than most.

More coverage:

• "Are Specter's Senate Days Numbered?" -- Christian Science Monitor
• "Rep. Sestak Says He Will Challenge Specter In Pa. Senate Primary" -- American Spectator
• "Sestak Pulls The Trigger" -- Politico

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NAM's ShopFloor.org has favorably cited our assessment of the impact of the Franken decision on EFCA's prospects:

Expect a renewed wave of enthusiasm by the bill’s supporters in the days to come.  Still, once Franken is seated as the second Senator from Minnesota, EFCA in its current form faces an uphill battle.   Many of the 60 votes possibly controlled by the Democrats have openly questioned the bill’s current provisions – Sens. Lincoln, Feinstein, and Bennet to name but a few.  Senator Arlen Specter (D-PA), whose recent famous party switch put the Democrats this close to the prospect of cloture on any given measure, has consistently criticized EFCA as currently drafted. 

(NAM also had an important tidbit yesterday on President Obama's intention to nominate George Coehn to head up FMCS.)

LaborUnionReport remains concerned that the current version may yet be sent to the floor soon:

While there is still the potential for compromise legislation to be crafted, Tom Harkin has threatened, barring any compromise, to send the legislation to the Senate floor for an "up or down vote" after July 4th (which is less than a week away).

Kevin Bogardus reports in The Hill that Democrats and Labor seem cautiously optimistic yet politically realistic about the bill: 

“Franken’s victory certainly helps our chances of passing EFCA, but there is still plenty of work to be done,” said Thea Lee, policy director for the AFL-CIO.

“Working families need him in the United States Senate to help restore the economy, rebuild the middle class and renew the American Dream for all workers,” said Anna Burger, chairwoman of Change to Win and secretary-treasurer of the Service Employees International Union.

The bill should pass overwhelmingly in the House. But unlike in the last Congress, the Senate is working on the bill first to see if a compromise can be worked out to gain cloture.

Sen. Tom Harkin has been the lead negotiator on a compromise. The Iowa Democrat says Franken needs to be seated to have enough votes for Senate passage.

“There are multiple factors at play. Seating Sen. Franken is definitely one of them, but this bill is a heavy lift. Sen. Harkin is committed to moving this bill forward in a timely fashion,” said Bergen Kenny, Harkin’s press secretary.

Still, there is no question where Mr. Franken stands on the legislation:

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