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

The early results are in from yesterday's primary contests, and this morning's talking points focus on the general anti-incumbent trend.  But others, including NAM's ShopFloor.org, have also noted it was a "Tough Night for the Card Check Crowd."

Chief among the figures central to the long-winding evolution of the Employee Free Choice Act is five-term Democrat-turned-Republican-turned-Democrat Senator Arlen Specter of Pennsylvania.  An original co-sponsor of the 2005 Act, Specter was long viewed as a crucial "bi-partisan" vote for EFCA in the whip count.  Sen. Specter consistently expressed a strong desire to see labor law reform addressed in this Congress. Yet he was also highly critical of EFCA (and the tenor of the related debate) in both a 2007 floor speech on the cloture motion and in a Policy Essay published in the Harvard Policy on Legislation.   Then, on March 24, 2009, Senator Specter made a pivotal floor speech, wherein he declared he would vote against cloture on EFCA as drafted.  In his speech, and in an attached Appendix to his remarks, he expanded further on the various alternative avenues of labor law reform he might support.

Senator Specter's statement -- and guaranteed protection of the filibuster -- likely freed Democrats critical of the bill to state their opposition as well.  Just two weeks later, Senator Blanche Lincoln (D-AR) announced that she would not support EFCA as introduced.  Additional Democrat Senators soon too expressed reservations about the bill.

Then, in yet another interesting turn, in  late April, 2009, Sen. Specter announced that he was switching parties, and would run for re-election in 2010 as a Democrat.  At the time, he declared: "...my position on Employees [sic] Free Choice (Card Check) will not change."  But, as NAM notes today, just five months later, he told the Pennsylvania State AFL-CIO Convention:

We have pounded out an Employees Choice bill which will meet labor’s objectives. I believe before the year is out, and I will join my colleague Senator Casey in predicting, that there will be passage of an Employees Free Choice Act which will be totally satisfactory to labor.

Last night, Senator Specter suffered a substantial defeat in the Pennsylvania Democratic Party primary, losing to challenger Rep. Joseph Sestak (D-PA).  Is this really a rejection of EFCA by the voters as NAM suggests?  Maybe, but it also may be too early to tell as there were clearly a lot of other factors at work here.  It may be noteworthy that his challenger, the Democratic nominee, Rep. Sestak co-sponsored EFCA in 2007 and 2009, and voted for the measure in 2007 when it passed the House.  Interestingly, early in this Congress, he also intorduced an alternative labor law reform measure -- the National Labor Relations Modernization Act (H.R. 1355).  This law 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.

No further action was taken on Rep. Sestak's bill.

The other key figure mentioned above, Sen. Lincoln, appears to have narrowly finished ahead of her union-backed primary challenger Lt. Gov. Bill Halter (D-AR), but will need to compete in a run-off with Halter come June.  Lincoln has consistently opposed EFCA, drawing the ire of labor groups and consequently, the primary challenge.  EFCA and organized labor were consistently more overt issues in this race, and to NAM's point, Lincoln's victory last night despite the anti-incumbent wave may be a better indicator of anti-EFCA sentiment than the Pennsyvlania result.

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National Journal reports on last night's debate between Senator Blanche Lincoln (D-AR) and her primary challenger Lt. Gov. Bill Halter (D-AR):

Halter went on offense first against Lincoln during a question about the Employee Free Choice Act, which is often referred to as "card check." He mentioned that she first sponsored EFCA, then opposed it and then "signaled" to Senate leadership that she would filibuster such a bill. Halter stressed that he would support what he's heard about a compromise unionization bill being worked on by Sen. Mark Pryor (D-AR) and that the original EFCA draft is a non-starter even among union leadership now.

That set up Lincoln for an easy body blow on Halter, saying, that she appreciated he "has seen that compromise because most senators haven't seen that compromise." She later added bluntly, "I don't support card check," saying that it "creates unfortunate divisions" though she did not offer specific details. Instead, Lincoln said more focus should be paid to the economy.

Elsewhere, the Times-Picayune (La.) recounts a recent meeting between Sen. Mary Landrieu (D-LA) and the Louisiana Restaurant Association, primarily about healthcare reform, but apparently covering other issues like EFCA:

[Association President James] Funk said he left the meeting delighted by word from Landrieu that she felt that the Employee Free Choice Act, also known as "card check," which is backed by labor unions to facilitate organizing efforts, was not going anywhere this Congress and "she hasn't signed on as a co-sponsor. We were very, very pleased."

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Following Andy Stern's surprising announcement that he would step down as President of SEIU, his protege, Secretary-Treasurer Anna Burger and California-based labor leader, Mary Kay Henry seek to succeed him.  This weekend, in a memorandum to the union's International Executive Board, Ms. Burger laid out her vision for the priorities she would have the union pursue.  Listed within the first:

Use smart strategies to push the labor‐friendly majority on the NLRB to level the playing field and make it easier to organize through regulation and reconciliation to make quick elections and first contract arbitration the law of the land.

And finally we must face up to the challenge of rebuilding our ability to win traditional NLRB organizing campaigns, as well as exploring new models for organizing the private/private sector where millions of workers, not dependent on shrinking public dollars live on poverty wages in SEIU strongholds.

The first point is likely to raise eyebrows among EFCA-watchers who have recently heard mixed, but generally negative, assessments of the bill's current prospects.

The second point is perhaps more interesting.  A few years ago, when EFCA, card-check/neutrality and corporate campaigns seemed ascendant, the rejection of traditional organizing methods was a primary pillar in the SEIU's break from the AFL-CIO and formation of Change to Win.  This endorsement of a renewed commitment to NLRB processes by the SEIU's probable future leader -- obviously now that there is a former SEIU attorney sitting on the Board -- is notable indeed.

Cross-posted at LaborRelationsToday

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In advance of a probable filibuster (with growing support) over Craig Becker's nomination to the National Labor Relations Board, Glen Spencer of the U.S. Chamber's Workforce Freedom Initiative and former Clinton-Gore advisor Peter Mirijanian swapped commentary on Fox News earlier today:

The anchor led with the angle that concerns have been raised about Mr. Becker's ability to implement elements of EFCA via administrative action. Challenged by the anchor, Mr. Spencer conceded "it would be difficult to get some of the ideas in the card check bill through administratively, but there's no question, I think, that Mr. Becker would try." In a wide-ranging defense of Mr. Becker's nomination, Mr. Mirijanian dismissed opposition as "politics" and suggested that Mr. Becker would not be able to impose EFCA by "administrative fiat."

As of right now, weather permitting, the Senate intends to take up the vote at around 5 p.m. today.

More commentary:

• "Nelson Joins GOP In Opposition to Obama Nominee" -- CNN Political Ticker
• "Senate Dem Nelson Joins Republican Filibsuter Against Obama's NLRB Choice" -- AFL-CIO blog
• "Ben Nelson to Filibuster Key Obama Labor Nominee" -- Huffington Post
• "Sen. Nelson (D-NE) Will Vote Against Cloture on Becker" -- ShopFloor.org
• "With Nelson, GOP Blocks Obama Labor Board Nominee" -- ABC News
• "Senate Votes Today On SEIU Lawyer For NLRB" -- Human Events
• "Blue Dogs Running For Cover Over NLRB Nominee" -- American Thinker

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The Senate Health, Education, Labor & Pensions (HELP) Committee is scheduled for an executive session tomorrow to consider pending nominations by the President.  The Hill reports today, however,  that a spokeswoman for HELP Committee Chairman Tom Harkin (D-Iowa) said the Committee will not be considering the re-nomination of Craig Becker to the NLRB this week.  Nonetheless, business groups continue to ramp up their opposition to the nomination:

“Yes, we will absolutely oppose the Becker nomination,” said Jade West, senior vice president of government relations for the National Association of Wholesaler-Distributors (NAW). “The NLRB, under the leadership of Becker, could implement the Employee Free Choice Act by fiat.”

The National Association of Manufactures (NAM) also sent a letter to the chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee opposing the nomination.

The Chamber, NAW and NAM were part of a 23-business coalition that wrote to senators last October to oppose Becker’s nomination.

Union lawyers have dismissed the business groups’ concerns in the past, saying such a board ruling would come under heavy legal challenge and only legislation changing labor law would allow the card-check process to take place.

Other commentators sympathetic to labor, however, are less dismissive.  In the Huffington Post's coverage of the nomination debate, Dmitri Iglitzin and Steven Hill write:

To understand what is at stake, it's necessary to understand the potential power of the NLRB, a little-known administrative agency with broad authority over labor matters. The president appoints and the Senate confirms members to this body, and an NLRB on which Obama appointees constitute a majority could overturn a number of key decisions issued by the Bush administration-appointed board. Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:

* drastically shorten the time frame for holding union elections;

* eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;

* require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;

* require equal access to both workers and the workplace for unions during campaigns; and

* increase the penalties on companies that violate their workers' legal rights.

The NLRB even could make it easier for workers to unionize based on a card check showing of majority support--just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as a neutral third party verified that more than 50 percent of those employees had signed a written statement expressing a desire to be represented by that union. That's a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers who threaten retaliation against their workers.

Other commentary on the issue:

• "It's All Academic: Profs Push NLRB Nomination" -- TheTruthAboutEFCA
• "66 Academics to the Senate: Confirm Craig Becker to the NLRB Now" - FireDogLake
• Previous EFCAReport coverage here.

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Back in August, AFL-CIO President (then Treasurer-Secretary) Richard Trumka told a webchat audience that efforts to pass the Employee Free Choice Act would probably not advance any further until after Congress was through with healthcare reform.  As the debate over the healthcare legislation soldiers on, Tuesday's Politico noted "For labor, there's always next year":

To be sure, health care reform has been a goal of union leaders for a long time, and they are still working with Congress to win passage. But labor’s top priority — passage of the Employee Free Choice Act — was in trouble almost the moment the Democrats were sworn in, stalled by the unexpectedly long effort to fill their filibuster-proof Senate roster.

 

First, labor advocates had to wait until the contested Senate race in Minnesota was settled and Democrat Al Franken was seated. Then the death of Sen. Ted Kennedy (D-Mass.) caused further delay.

 

Backers of the bill are hoping it will re-emerge as a congressional priority once health care moves from center stage. But even then, it’s unclear whether Sen. Tom Harkin (D-Iowa) has been able to hash out language acceptable to the moderates and conservatives in his caucus — a task made all the more difficult by the looming midterm elections.

 

Still, labor advocates remain hopeful.

There has been nothing reported about specific conversations on alternative approaches to the bill since September, but President Trumka remains committed to resuming the push in 2010, as he expressed during another webchat on Tuesday.

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State Bill Colorado and Boulder's Daily Camera report that on Tuesday, the Colorado Supreme Court ruled that three state ballot initiatives opposing provisions of the federal Employee Free Choice Act may proceed under state law.  The Court held that consideration Initiatives 22, 23 and 24, which would amend the Colorado Constitution to preserve the right to a secret ballot in employee representation elections, does not violate the state election law's "single subject rule."

An AFL-CIO lobbyist, Philip Hayes, filed a challenge to the initiatives but the Court ruled that they were fair under the state law:

Hayes contends that the Initiatives contain more than a single subject in violation of article V, section 1(5.5) of the Colorado Constitution. Specifically, Hayes asserts the Initiatives seek to establish both a general right to secret ballot voting in all voting situations, and a more narrow right to secret ballot voting in employee representation elections. However, Hayes’ reading of the Initiatives focuses on one sentence and ignores the context supplied by text on either side. Upon reading the Initiatives as a whole, we conclude the Initiatives carry out only one general purpose. Thus, we hold the Initiatives do not violate the constitutional prohibition on multiple subjects.

Thus it seems the voters of Colorado may have the opportunity to vote on these initiatives in a state election, if the federal government passes a version of EFCA containing card-check provisions.

As we noted earlier this year, the many efforts underway to invalidate EFCA provisions by state constitutional amendment will face many legal hurdles -- not the least of all, federal preemption.  But at least one such effort, in Colorado, appears to have cleared the first significant challenges inside the state.

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Kevin Bogardus of The Hill remains one of the most active reporters on the status of the Employee Free Choice Act.  His piece this morning compiles the commentary of numerous Democrat lawmakers seeking to mitigate Senator Arlen Specter's (D-PA) assurances to the AFL-CIO that an alternative EFCA bill had been finalized and would pass in 2009.  Confirming an earlier report by the National Association of Manufacturers Shopfloor Twitter feed, Senator Tom Carper (D-DE) indicates in the piece that there have been no formal talks on the union bill since July, and, that moderate Democrats have not been involved in discussions.

Other remarks from the piece:

• Senator Carper:

“As they say, frank and honest discussion. I think we have made real progress and narrowed somewhat of the differences between organized labor and the business community. We are not quite there yet. My hope is we will finish what we have started.”

• Senator Harry Reid (D-NV):

Asked about any deal on the bill, Majority Leader Harry Reid (D-Nev.) said,” I’m not aware of any.”

• Senator Dick Durbin (D-IL):

Majority Whip Dick Durbin (D-Ill.) said the same, calling the issue “a work in progress” and saying he expects the Democrats’ lead negotiator, Sen. Tom Harkin (D-Iowa), will inform Democrats when a deal is reached.
 

“It’s been in progress for months,” Durbin said. “I think if they ever reach common agreement, they’ll notify us and then we will take it from there.”
 

And confirming Carper's assessment of the "Centrist Democrat" involvement in these talks:

“Nothing final, to my knowledge, has been finalized, but I know members from both sides have been working on, I guess, a compromise,” said Sen. Mary Landrieu (D-La.).
 

Sen. Kay Hagan (D-N.C.) was surprised to hear the issue was being revived. “From what I understood, the whole card-check issue was dead,” Hagan said.
 

And Sen. Blanche Lincoln (D-Ark.), who faces reelection in 2010 and said earlier this year she would oppose the bill, said she is unaware of any changes. “I haven’t heard or seen anything yet,” Lincoln said.

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During the past few days a virtual parade of high-ranking Democrats have addressed the AFL-CIO constitutional convention to pledge support for organized labor and the Employee Free Choice Act.  President Obama, Secretary of Labor Hilda Solis, Senate Majority Leader Harry Reid (D-NV), and House Speaker Nancy Pelosi (D-CA) have all spoken to the assembled union delegates.  Today, The Washington Post Capitol Briefing blog reports Senator Arlen Specter (D-PA) delivered the most interesting message regarding the Employee Free Choice Act -- namely, the conceptual contents of the revised bill which will be passed before year's end:

After his speech, Specter detailed the revised bill he has been crafting with Senate Democrats, the rough outlines of which have been trickling out for weeks. The revised measure would not include the most controversial provision -- allowing workers to organize by getting their co-workers to sign pro-union cards, instead of having to hold secret-ballot elections in the workplace. Unions argue that such elections are unfairly dominated by employer threats and intimidation, but the provision to drop the secret-ballot election has proved highly unpopular with conservative Senate Democrats.

Instead, Specter said, the bill would try to make union elections more fair by sharply limiting the time between organizers' declaration that they have enough support to call an election and the day of the vote, to reduce the potential for employer intimidation. Organizers would also be guaranteed access to workers if employers held mandatory anti-union meetings on company time. And the penalties for employers who break labor law rules would be triple what they are today.

The bill would also tweak its other major element, which has gotten less attention but is also anathema to employers -- mandatory arbitration for employers and unions who fail to reach a contract within a few months. As it stands, more than a third of newly formed unions never get a first contract and wither away, which is why labor supporters say mandatory arbitration is needed. But employers vigorously oppose having government-appointed mediators set contract terms. To allay employer concerns that unions would ask for the moon in hopes of the mediator splitting the difference, the revised bill would go with "last best offer arbitration" -- the approach used in baseball arbitration, in which the mediator has to pick one offer or the other, which encourages the negotiators to offer a reasonable deal.

Specter told reporters that he was confident that this package would get the 60 votes needed to break a filibuster -- and not one more. No Republicans would vote for the bill, he predicted, but he was sure that every Democrat would vote against a filibuster, including conservative Democrats who were very wary of the initial "card check" bill, such as Blanche Lincoln (Ark.) and Ben Nelson (Neb.) He said he had spoken with both of them and while they did not say so explicitly, he was left with the impression that they would help break a filibuster, if not vote for the bill itself.

 More coverage:

• "Specter tells AFL-CIO he backs organizing bill" -- Associated Press
• "Specter seeks labor support at AFL-CIO conference" -- Pittsburgh Post-Gazette
• "Specter: Deal pounded out on card check, should pass this year" -- The Hill

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In today's New York Times, labor reporter Steven Greenhouse has a piece compiling comment from various recent interviews with prominent American labor leaders on the status of the Employee Free Choice Act. 

From a talk with AFL-CIO President John Sweeney:

In an interview, John J. Sweeney, the federation’s president, said he would accept a fast election campaign instead of card check because it would meet his goal of minimizing management interference during organizing drives.

Mr. Sweeney said he “could live with” fast or snap elections “as long as there is a fair process that protects workers against anti-union intimidation by employers and eliminates the threats to workers.”

Sweeney continued to state that he might find a secret ballot election held five to ten days after a petition an acceptable alternative:

“If modifying that in some way or another is going to bring some more votes for the bill, I think that’s worth it,” Mr. Sweeney said.

His expected successor, Secretary-Treasurer Richard Trumka was less emphatic about the specific alternative proposal, but...

...said the A.F.L.-C.I.O. wanted to make sure that any legislation contained three components: a process in which workers were free of intimidation; greater penalties against employers that break the law during organizing drives, for instance by firing outspoken union supporters; and binding arbitration to prevent employers from indefinitely dragging out negotiations without ever reaching a contract.

Finally, union lobbyist David Bonior of American Rights At Work echoed Mr. Sweeney's remarks:

“The first preference for everybody in labor is the original bill,” he said. “And if we preserve the principles of the original bill and there are some changes — and if we can get 80 to 90 percent of what we started with — I think people would move forward on that.”

Perhaps the most interesting part of the piece involves the issue of the effort's timing:

Mr. Sweeney said President Obama had assured labor that as soon as health care legislation was passed — if it was passed — he would work with labor and the Democrats to pass the pro-union legislation, known as the Employee Free Choice Act.

Mr. Sweeney voiced optimism that the bill would pass.

“It’s going to be this year,” he said.

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While Healthcare Reform seems to be dominating both the news cycle and the public consciousness recently, there are apparently still at least a few citizens concerned about EFCA.  At a town hall meeting earlier today, Senator Arlen Specter (D-PA) was met by a man who passionately expressed frustrations about EFCA.  (See video below.)  The Senator's initial response:

That bill is in the process of being negotiated.  There will not be a timeline which will be so fast that people will not have an opportunity to understand what the issue is."

Curious...  One might suggest that Senator Specter carefully parsed his words here to imply that "quickie elections" would not be a part of the "negotiated" bill.  On the other hand, given the context of the speaker's commentary, it may be that the Senator means that anything is still possible in the bill, but that the public will have "an opportunity to understand" the version of EFCA that is ultimately brought to the floor (contrary to the suggestion of some Democratic staffers not long ago).

Other points which the Senator addressed a little more directly:

• "I think we have to maintain the secret ballot"

• "We're trying to work thru the other facet of it on arbitration on last best offer, but we're bearing in mind the concerns and the worries you've raised."

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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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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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The Minneapolis Star Tribune and CBS report that the Minnesota Supreme Court has affirmed the trial court decision declaring Al Franken (D) the winner of last year's Senate election:

"We affirm the decision of the trial court that Al Franken received the highest number of votes legally cast" in the election, the decision states. The justices also explicitly ruled that Franken is "entitled" under Minnesota law to receive the certificate of election as senator.

The judges stated that Coleman has "not shown that the trial court's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion." They ruled unanimously for Franken, 5-0.

Subsequent reports note that Coleman has conceded.  Once Franken is seated, the Democrats will hold 58 seats in the Senate, and two independents, Sens. Joe Lieberman (I-CT) and Bernie Sanders (I-VT), often caucus with them on labor issues.  It has long been speculated that this development would lead to a resurrection of efforts on behalf of the Employee Free Choice Act. 

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.  On April 28 of this year, he reiterated that stance:

My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees [sic] Free Choice (Card Check) will not change.

What this likely means is that the various parties pursuing alternative labor law reform measures will now step up those efforts.  Among these underway:

• Senator Specter has previously laid out a number of possible elements he would explore, many of which we reviewed in our early 2009 white paper.
• Sen. Tom Harkin (D-IA) is said to have been pursuing "compromise" legislation providing for secret ballot elections within 21 days, and a greater emphasis on mediation in collective-bargaining.
• Sens. Feinstein and Specter have been said to have been discussing some form of mail-balloting as a selection method.
• The Committee For a Level Playing Field has proposed a comprehensive set of "principles for reform" incorporating stricter penalties, dates certain for elections, and union access to employees during campaigns, while preserving secret ballot elections and collective bargaining.

More coverage of today's news:

• "Meet the Dems' 60th Vote...Maybe" -- Atlanta Journal Constitution
• "After Eight Month Fight, Franken to be Seated" -- The Hill
• "Norm Coleman concedes Senate race to Al Franken" -- Politico
• "AFL-CIO: Franken Crucial for EFCA Passage" -- TPMDC

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Today's Chamberpost blog carries commentary on a series of somewhat embarassing admissions by the Director of Collective Bargaining for the AFL-CIO that undermine the coalition's main talking points in favor of the Employee Free Choice Act:

... According to Daily Labor Report, the labor conglomerate’s director of collective bargaining, Gordon Pavy, told a policy forum that the bill’s passage would allow his organization to "refocus on organizing."

Hold it a second.  Refocus?  Hasn’t this already been a central focus of the labor movement?  Pavy’s comment reveals what we’ve known all along: organized labor has let its organizing efforts lapse in favor of using the political process to bolster its ranks by rigging the rules. 

Perhaps the more troubling admission:

On the issue of concluding first contracts, Pavy also revealed that "the AFL-CIO does not currently have a program to train members in how to negotiate collective bargaining agreements."  Huh?  A favorite talking point of EFCA supporters is that they can’t get contracts because employers drag out negotiations. Perhaps unions would seal the deal on more contracts if they made training negotiators a priority. 

Instead, unions want binding first contract arbitration so they always get a contract no matter what they demand at the bargaining table.  But, Pavy detailed the squeeze this would create on negotiating parties: 

"Bargaining must commence 10 days after [union authorization cards are signed]," Pavy said. "It takes a lot of work to prepare for bargaining.  It takes even more work when you’re dealing with the prospect of possibly going to arbitration."

We’ve said all along that negotiating for a first contract can be a difficult process that takes time.  Nice that the AFL-CIO agrees. But as they admit, setting up a race against the clock makes that process even more difficult, guaranteeing that most negotiations will wind up in arbitration.

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The latest on EFCA swing-vote Sen. Arlen Specter via the Allentown Morning Call's Pennsylvania Avenue blog:

Sen. Arlen Specter, addressing a crowd of union activists outside of the Democratic Committee meeting in Pittsburgh on Saturday, urged them to look at the breadth of his job-producing past and votes alongside labor when considering who they'll back for Senate in 2010.

But with the crowd of a couple hundred solely focused on the Employee Free Choice Act, Specter pleaded with some more hostile activists that they'll be happy with his vote on the union organizing bill.

"I understand," Specter said after one member of the crowd shouted "You want my vote, I want your vote."

"I believe you'll be satisfied with my vote on this issue," Specter said.

At The Weekly Standard, John McCormack posts:

When Specter announced his opposition to EFCA in March, he came out against both the card-check and binding arbitration provisions.   . . .   I'd be surprised if a watered-down EFCA bill didn't include some sort of binding arbitration provision, so be prepared for another unsurprisingly shameless Specter flip-flop.

Similarly, at National Review Online's The Corner, former NLRB Member Peter Kirsanow suggests:

. . . It's highly unlikely Labor would be "satisfied" with any version of EFCA that doesn't exponentially improve the odds of unionization. It's also unlikely that Labor would be "satisfied" with a bill that doesn't have some form of mandatory arbitration.  

When Franken is seated, Specter will be the magical 60th vote for cloture on EFCA. Specter knows that if he derails a version of the bill satisfactory to Labor, he may well derail his prospects in the Democratic primary. Therefore, Specter may be signaling support for a bill that contains quickie elections and equal access, as well as a modified form of mandatory arbitration — perhaps one triggered by bargaining delays.

More:

• Senator Specter's entire speech at PennLive.com
• "Arlen Specter's Charm Offensive" -- Politico
• "Specter to Labor:  You'll Like My EFCA Vote....Maybe" -- The Hill's Briefing Room
• "Early Returns: Specter Reax" -- Pittsburgh Post-Gazette

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The Wall Street Journal reports that Senator Arlen Specter (D-PA) is testing the waters by suggesting two possible alternative components to the Employee Free Choice Act:

Under a potential compromise on the contentious subject of secret-ballot elections, workers could mail in ballots during union elections instead of the bill's current provision in which workers would sign cards collected by union organizers. The compromise approach would theoretically preserve privacy and reduce opportunities for coercion by union organizers and employers.

The second change would restrict the use of arbitrators in contract negotiations to situations in which the two sides fail to reach agreement on their last and best offer. The current version of the bill calls for automatic arbitration after 120 days.

To be sure, these two proposals differ from Sections 2 and 3 of the current version of EFCA.  Yet they still suffer from the same significant flaws as the current bill.  Perhaps that is why business interests were so quick to react:

"We continue to stand in support of the right of workers to have a secret ballot and the right to vote on contracts without interference from government bureaucrats," said Katie Packer, executive director of the Workforce Fairness Institute, a business-backed nonprofit that opposes the Employee Free Choice Act,

Senator Specter's "mail-in" proposal is curious, as it is something that was not included among the many alternative elements suggested by the Senator in his March 24th statement on the Senate floor.  Moreover, earlier reports had Senator Specter's colleague Sen. Tom Harkin (D-IA) pushing an expedited time-frame for secret ballot elections as a possible alternative to card-check.

More details are certain to emerge in the coming days, as Democrats continue to try to find some common ground on an alternative bill capable of gathering 60 votes in the Senate.

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Earlier today, USA Today reported that President Obama spoke at a New Mexico town hall meeting about the Employee Free Choice Act.  USA Today's coverage suggested that the President expressed reservations regarding the card-check provisions.  Now that others are reporting his comments more fully, it seems that the President, in fact, reiterated his support for the main idea behind EFCA -- facilitating union organizing -- but also acknowledged the practical reality that the bill probably cannot be passed in its current form.  He also presented, without endorsing, the "other side of the argument" on behalf of the opposition.  The official transcript of his remarks, via KOAT:

THE PRESIDENT: Okay, let me talk about the Employee Free Choice Act. One of the things that I believe in -- and if you look at our history, I think it bears this out -- even if you're not a member of a union, you owe something to unions, because -- (applause) -- because a lot of the things that you take for granted as an employee of a company -- the idea of overtime and minimum wage and benefits -- a whole host of things that you, even if you're not a member of a union, now take for granted, that happened because unions fought and helped to make employers more accountable. (Applause.)

The problem that we've seen is that union membership has declined significantly over the last 30 years. And so the question is, why is that? Now, part of it, the economy has changed and the culture has changed, and there hasn't been a very friendly politics in Washington when it comes to union membership. But part of it just has to do with the fact that the scales have been tilted to make it really hard to form a union. So a lot of companies, because they want maximum flexibility, they would rather spend a lot of money on consultants and lawyers to prevent a union from forming than they would just going ahead and having the union and then trying to work with -- and collectively -- allow workers to collectively bargain.

So there's a bill called the Employee Free Choice Act that would try to even out the playing field. And what it would essentially say is, is that if a majority of workers at a company want a union then they can get a union without delay -- and some of the monkey business that's done right now to prevent them from having a union.

Now, I want to give the other side of the argument. Businesses object to some of the provisions in the Employee Free Choice Act, because one of the things that's in there is something called card check, where rather than have a secret ballot and organize a big election, you could simply have enough employees, a majority of employees, check a card and that would then form the union. And the employers argue we need to have a secret ballot.

I think that there may be areas of compromise to get this bill done. I'm supportive of it, but there aren't enough votes right now in the Senate to get it passed. And what I think we have to do is to find ways in which the core idea of the Employee Free Choice Act is preserved, which is how do we make it easier for people who want to form a union to at least get a vote and have a even playing field -- how do we do that, but at the same time get enough votes to pass the bill. That's what we're working on right now. I think it's going to have a chance of passage, but there's still more work to be done. (Applause.)

This reflects a somewhat pragmatic approach.  Special interests have wasted no time in excerpting and splicing the President's words to ignore his reference to "compromise" efforts, and to exaggerate his support for the current bill.  See this SEIU mash-up already up on YouTube and compare it to the official transcript above:

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USA Today's The Oval blog just finished live-blogging President Obama's town hall meeting from New Mexico.  During the Q&A period comes the following entry:

12:55 - A man asks about the "employee free choice act," which would help more unions form. Obama praises the contribution of unions to society, and worries about the decline in union membership. But he cites objections to the "free choice" act, including the fact that it does not assure secret balloting for formation of a union. Notes there aren't enough votes in the Senate to get the act passed, but says there may be room for compromise.

This is a clarification of the President's position which differs from recent reports.  News coverage from earlier in the week was vague, at best, but suggested that Vice President Biden told AFSCME that the White House remained fully supportive of the Act.  And yesterday, American Rights at Work released its newest TV ad that suggested that President Obama was in favor of the bill as currently drafted, and not in favor of the "compromise" efforts being led by Sens. Harkin and Specter.

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Earlier today, we included a link to a Washington Post editorial which criticized business interests for remaining opposed to talk of an EFCA "compromise":

... the coalition failed to acknowledge any flaw in the existing process -- except to the extent that it suggested, falsely, that the current playing field is tilted in favor of unions. That hardly sounds like bargaining in good faith.

NAM was quick to respond with a few thoughts, and now, James Sherk of the Heritage Foundation has posted a thorough explanation of the criticized position that current labor law is, in fact, skewed in favor of union organizers.  As support, Sherk cites:

• Unions control the election timing, so workers do not vote until union support peaks.
• Employers rarely learn of the organizing drive until unions ask for an election, so unions have months to build support while employers have just one month to present the other side.
• Employers may not ask employees if they support the union. Unions may ask employees how they will vote and focus their efforts on persuading undecided workers.
• The law severely restricts employer speech while allowing unions to say almost anything they want. Employers may not promise to improve working conditions if workers vote down the union. The union may promise anything it wants, even if it knows it cannot keep those promises.
• Employers may not even ask workers what problems they have in the workplace and why they want a union. Unions can ask workers about anything they want.
• Unions may not campaign while workers are on company property and on company time. However the company must give unions the addresses of every worker and unions can visit workers at their homes. Employers are legally prohibited from visiting workers homes to campaign.

His conclusion:

The only way for unions to organize most companies is if workers never get the chance to hear the other side and learn that, empty union promises aside, organizing won’t actually do much to help them. The goal of the misnamed “Employee Free Choice Act” is to force workers to publicly commit to a union before ever getting to hear the other side. That’s great for union organizing, but not for workers.

These card-check “compromises” have the same goal. Snap elections are intended to deprive workers of an informed choice. They would force workers to vote after months of campaigning by the union but with only a few weeks to hear the management side. How is that fair, and how does that help workers? Mandatory union access to company premises at staff meetings is intended to deter companies from discussing the downsides of organizing. If an employer doesn’t want the union disrupting their workplace they cannot talk to their employees about why unionizing might not be everything the organizers have promised.

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In a post a few weeks ago, we speculated that as EFCA's prospects dwindled, employers might expect to see a recognizable uptick in union corporate campaign activity.  Now that card-check is possibly dropping out of the compromise bill being crafted in the Senate, employers must be prepared to face increased organizing by corporate campaigns.  After all, securing agreement on card-check recognition -- often accompanied by an employer's pledged "neutrality" -- is usually the primary goal of these campaigns.  These efforts confront the target employer with a highly coordinated campaign of negative publicity, consumer pressure, legislative and regulatory action, and litigation in order to coerce acquiescence to union organizing efforts

And it appears that the efforts are indeed becoming more visible again.

Yesterday's Boston Globe reported on Change To Win's latest salvo in its ongoing campaign against retailer CVS Caremark: 

CVS Caremark Corp. last year had a 67 percent increase in the number of state violations for allegedly overcharging customers, the largest of any retailer in Massachusetts, according to a report to be released today.

Consumer advocates and organizers from Change to Win, a coalition of American labor unions, plan to unveil the analysis - compiled from inspection reports from the Massachusetts Office of Consumer Affairs and Business Regulation - and call upon lawmakers to do more to strengthen pricing protections.

Beth Israel Deaconess Medical Center CEO Paul Levy continues his excellent blogging on the SEIU's corporate campaign against the Boston hospital, following up an earlier post this week with "Because It Can":

There are sightings of a new mobile billboard hired by SEIU to burn fuel through the neighborhoods of Boston. Add to that the likely rental of bus and trolley stop ads, the ubiquitous internet ads, on top of purchasing full paid ads in the local newspapers. I am sometimes asked, "Why does the SEIU do this?"

As you all know by now, the ads have nothing to do with organizing workers. They are meant to denigrate the reputation of the hospital as part of a corporate campaign. Even if any of the accusations made in the ads were to be accurate, why would the existence of problems at BIDMC be an argument for unionization? By that logic, what would one conclude from certain types of problems at the SEIU?

And late last week, Cintas announced that it would appeal the recent dismissal of its RICO lawsuit against UNITE-HERE and the Teamsters arising out of the unions' long corporate campaign against the uniform company.  Per a statement released by the company:

“We strongly believe in the merits of this case and are hopeful that the Second Circuit Court of Appeals will not allow the District Court’s decision to stand,” said Scott Farmer, Chief Executive Officer of Cintas Corporation. “We disagree with the recent ruling and remain committed to protecting Cintas and our employees from the unions’ ongoing extortion,” he added.

Cintas alleges that, for the last six years, UNITE HERE and the above named labor organizations have carried on a campaign of negative, untrue and unlawful attacks against Cintas in an effort to extort concessions from the company that would enable UNITE HERE and the Teamsters to become the official bargaining representatives for Cintas employees without a valid showing of majority support and without those employees ever being able to freely decide whether they want a union. At the outset of its corporate campaign against Cintas, Bruce Raynor, Co-President of UNITE HERE publicly stated he intended to ‘break the back’ of Cintas if the company did not agree to his demands. The company has long maintained that the right to choose whether to be a member of a union belongs to each individual employee, and has continually reiterated its commitments to protect its employees’ rights to the secret ballot election process.

Time will tell whether the novel RICO approach by employers will preclude more widespread use of the corporate campaign.  In the meantime, however, since it appears the Congress may be unable to deliver card-check organizing to unions, employers should be prepared to face alternative union efforts to obtain it via this potentially effective method.

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The Wall Street Journal reports that Senators are busy working on a compromise version of EFCA that would drop the bill's card-check provision in favor of an expedited secret ballot election process.  The report indicates:

Compromise talks are being led by Sen. Tom Harkin (D., Iowa), the bill's lead sponsor in the Senate. Kate Cyrul, a spokeswoman for Mr. Harkin, declined to comment on details of the compromise being discussed. But she said the senator "remains confident that we can address these issues without compromising the core provisions of the bill."

Among the changes being discussed are dropping the card-signing provision and setting a 21-day deadline for an election to be held -- about the half the median of 40 days that union elections currently take, according to people familiar with the talks. An aide for Mr. Specter said the senator is "generally supportive" of the idea that an election must be held within 21 days if the employer wants a secret ballot.

This is consistent with reports from late March which had Sen. Harkin approaching moderate Republicans to attempt to reach consensus on an approach to labor law reform.  A shortened election period is an alternative element about which we speculated in our February 2009 white paper, "The Employee Free Choice Act in the 111th Congress".

According to this new WSJ report, however, mandatory interest arbitration may still be on the table in some form:

Another compromise relates to contract negotiations. The bill currently calls for arbitrators to set contracts if an employer and a new union fail to agree within 120 days. Under a compromise, mediators -- rather than arbitrators -- would play a bigger role in helping the sides negotiate a contract. Arbitrators could still be used to rule on certain contract provisions after both sides failed to agree.

Unions of course will remain insistent that mandatory arbitration remain in the final bill, as it provides them a safety net for failure to obtain a contract otherwise.  While much of the attention devoted so far to EFCA has been critical of the bill's card-check provisions, commentators are starting to point out the flaws of the arbitration provision as well.  But beyond the practical objections to government arbitrators setting wages, benefits and terms of employment for private employers, the mandatory interest arbitration provision is entirely antithetical to the very essence of American labor law. 

The collective bargaining process was always intended as a balancing between the parties in a free economic market.  At all times during the process, the employees and/or their union representative retain the right to engage in economic pressure – to withhold their labor by means of a strike – in an effort to persuade the employer to modify its positions. But voluntary agreement has always been the most fundamental component of collective bargaining. Indeed, Samuel Gompers, founder of the American Federation of Labor and a father of the American labor movement, said: “The whole gospel of the labor movement is summed up in one phrase... freedom of contract -- organized labor not only accepts, but, insists upon, equality of rights and of freedom.”  EFCA's interest arbitration provisions are a radical and inappropriate departure from those principles.

No word in the WSJ piece on whether Sen. Harkin is including EFCA's remedial provisions and increased penalties against employers in his compromise discussions as well.

More coverage and comment:

• "Tom Harkin aims for Arlen Specter EFCA Compromise" -- Politico
• "Specter Eyes Support for Employee Free Choice Bill" -- People's Weekly World
• "SEIU Talks EFCA With Specter -- Says It's 'Critical' Issue" -- TPMDC

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Jennifer Rubin asks at Commentary Magazine's blog whether the groups that opposed EFCA are as well prepared to confront a "lite" version of the bill offered as compromise.  Her excellent post suggests these strategic possibilities:

... There are a couple avenues which they haven’t yet explored, in large part because they were able to beat back EFCA by focusing on the prospect of losing the secret ballot and the huge problems (legal and economic ) with mandatory arbitration.

The first is to back bipartisan reform. Enshrine in statute and enforce the Bush era measures combating union corruption and requiring financial disclosure, make proposed fines for unfair labor practices apply to both unions and employers, and ensure that whatever time limits on elections and access to employer premises (or email) which are required for employers also apply to union decertification elections and union premises (or email), respectively. That might either scare off Big Labor or, if not, maintain the traditional balance between labor and management that has been a hallmark of federal labor law for decades.

The second is to go after the premise that any of this is needed at all. EFCA has been a solution in search of a problem, resting on the questionable notion that unions are losing “market share” not because of worldwide trends against unionization or  because  of younger worker’s lack of affinity for unions but because of nefarious actions by employers. This requires some sober discussion and fact-finding hearings, which may not be in the offing in a Democratic-controlled Congress where the hearings are likely to be stacked heavily in favor of pro-union witnesses. Nevertheless, business groups would be wise to start educating lawmakers and the public if they want to burst the myth that the solution to Big Labor’s woes is more federal legislation

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MLA attorney and EFCA Report blogger Richard Hankins is quoted in today's Financial Times on EFCA.  Lately, pro-EFCA forces have taken to accuse critics of "lying" about the EFCA's provisions, claiming that it does not eliminate the secret ballot, but rather allows employees to decide whether they want to organize via secret-ballot election or via card-check.  Regarding this sophistry:

Employers say the secret ballot is vital to stop union organisers pressuring workers to sign up. "Workers won't decide. Union organisers will decide," says Richard Hankins, a lawyer at McKenna Long & Aldridge, who represents businesses on labour issues. "That does concern a lot of people."

Another interesting passage from the piece reflects a likely reality not enough employers are currently preparing for:

If card check fails, there is likely to be a day of reckoning for Democrats whose support wavered. The price of continued union backing is likely to be some sort of compromise measure as well as the formation of a more liberal National Labor Relations Board and pro-union executive orders from Mr Obama, which would not have to navigate a doubtful Senate.

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Perhaps getting a better read on political reality than many of their colleagues in the labor movement, SEIU President Andy Stern and Change To Win Chair Anna Burger told the WaPo's editorial board that labor may need to look for reform opportunities which do not include card-check recognition. A few of the potential elements mentioned by Mr. Stern were covered in MLA's white paper "The Employee Free Choice Act in the 111th Congress." From WaPo's 44 blog:

Speaking to The Post's editorial board, Stern noted that there are ways to try to level the playing field in union elections without giving workers a way around the secret ballot requirement, such as shortening the window before elections are held -- thus giving employers less time to pressure workers -- and stiffening penalties for employer violations.

"We are on the hunt for a solution," he said. "No matter what you do, you have to change the election process. Whether it's majority sign up or not, workers have to have a choice about having an election. The bill has to address ... fast elections, eliminating employer behavior and what happens if there are employer violations. Regardless, that needs to be done."

Mr. Stern, who is widely regarded as one of the most influential people in the labor movement, seems to recognize President Obama's lack of enthusiasm for advancing the legislative battle over EFCA at this point in time. Yet:

...he believes that unions must get behind some other substantive reform, instead of waiting until 2011 in hopes of a bigger Democratic majority after the next election. "We need to get something that's significant done," he said.

More:

• "Card Check: Labor Leaders Consider EFCA Compromise" -- ShopFloor.org

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Boston Business Journal reports that the SEIU and Change To Win's Pension Funds will spend the next two weeks increasing their attacks against Bank of America and its CEO, Ken Lewis.  The campaign will include media events, demonstrations and a shareholder proxy movement to oust Lewis.  The Journal notes that "some are beginning to question the motives" of the union:

“They’re after blood. They’re chumming the waters for sharks,” University of North Carolina-Charlotte finance professor Tony Plath says of the union’s campaign. “I’m not a cheerleader for BofA. But let’s be objective about this: These attacks are all about card check.”

Taking the fight to BofA, Plath and others suggest, allows the union to build support for proposed federal legislation called the Employee Free Choice Act, commonly called “card check.” It would allow unions to form by way of a majority, public vote. Secret ballots would no longer be required.

Plath is right.  But the union's intended objective may be narrower than obtaining passage of the Employee Free Choice Act.  The SEIU is engaged in what is known as a "corporate campaign."  Labelled by union organizers as the "death of a thousand cuts," these campaigns attempt to bury the target employer in an avalanche of negative publicity, consumer pressure and legislative regulation, in order to coerce acquiescence to union organizing efforts.  Most often that acquiescence comes in the form of agreement to a "neutrality and card-check" recognition process.  Once the company agrees, the publicity and pressure stops.

A few years ago, a number of employers who found themselves targets of these campaigns filed RICO suits against the unions responsible.  Cintas, Smithfield Foods and Wackenhut Security all sued alleging that the campaigns constituted unlawful racketeering activity.   Smithfield settled its case last year after it survived a motion to dismiss, but just last week a federal judge dismissed the Cintas suit against UNITE-HERE and the Teamsters.  As a result, it remains to be seen whether or not the corporate campaign will remain a viable organizing tactic going forward.  Employers must follow developments.  If EFCA fails in its efforts to replace secret-ballot elections with card-check as the primary method of organizing, one might expect to see a resurgence in corporate campaign activity.

More on corporate campaigns:

• Paul Levy, the President and CEO of Beth Israel Deaconness Medical Center, has chronicled SEIU corporate campaign tactics in numerous posts at his Running a Hospital blog.
• "The Death of a Thousand Cuts: Corporate Campaigns and the Attack on the Corporation" by Jarol B. Manheim; or, his piece for the U.S. Chamber of Commerce, "Trends in Corporate Campaigns," available online in its entirety.
• "Comprehensive Campaign" -- Wikipedia
• MLA's Seth Borden is quoted throughout "RICO Suits: Employers Fight Back Against Union Smear Campaigns" in the Capital Research Center's Labor Watch.

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At the Enlightened Despot blog, Akhbar the Great cautions people against ignoring the full import of the Employee Free Choice Act, while getting caught up in rhetorical abbreviations.  AtG would not refer to EFCA simply as "card check":

And this isn’t just a technicality. Other countries have a card check policy, but they of course don’t have EFCA on the books - it’s a proposed American law. Meanwhile, EFCA contains a lot of significant measures unrelated to card check. Indeed, card check itself is becoming increasingly irrelevant - there is simply no reason to think Democrats can put together 60 Senate votes for any bill that includes it, at least not until after the 2010 midterms.

At this point, the policy to watch is mandatory binding arbitration. Mandatory binding arbitration would require management and a newly formed union to enter a binding arbitration process for a two-year contract if the two sides are unable to come to terms on their own. The major compromise bills that have been introduced contain neither mandatory arbitration nor card check, and are about as popular with labor as Japanese car companies. Meanwhile, anti-labor types are worried that Democrats are planning to drop card check as a compromise for enacting mandatory binding arbitration.

The Truth About the EFCA blog carries a Columbus Dispatch story which it asserts highlights the dangers of card-check organizing:

An Ohio union organizer has been fired after he was caught forging documents to deduct money from public employees' wages to pay for political activity, the Service Employees International Union said yesterday.

Becky Williams, president of the SEIU District 1199, said she thinks this is an isolated incident, but the union is continuing to investigate.

More:

• The American Spectator explores the impact of EFCA on the widely ignored current multi-employer pension crisis in "A Good Time to Start Liquidating"
• ShopFloor.org criticizes American Rights at Work for demonizing American industry instead of arguing the merits of EFCA
• The American Issues Project has audio from Gov. Mitt Romney's Monday call regarding mandatory interest arbitration.
• Construction exec Brett McMahon's recent op-ed piece is reprinted in today's Washington Examiner

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The Senate Republican Committee held a hearing yesterday to voice opposition to the Employee Free Choice Act (H.R. 1409, S. 560).  Talk Radio News Service today carries the following quotes from participating Senators:

• Senator Orrin Hatch (R-Utah):  “It represents a sea-change in labor-management relations that has developed since the 1930s…. EFCA would effectively deny workers a secret ballot vote on the question of union representation, and there is no choice for workers to make in the matter.”
• Senator Bob Bennett (R-Utah):  "When you have a secret ballot election, unions have won 68% of them, which means that by 2 to 1 circumstance, employees get what they want if they want a union.” 
• Senator Jim Risch (R-Idaho): “We have in place in America laws that have governed union organization and collective bargaining for many years. We have a fair system and we have a level playing field…. What we have in front of us is a bill that is unfair. It is a bill that unlevels the playing field, and it is a bill that overreaches. We don’t need this in America today.”

Shopfloor.org has linked to the statement of former U.S. Department of Labor Solicitor Eugene Scalia who questioned the constitutionality of the legislation.  After expressing concerns about the card-check provisions, Scalia criticized the mandatory interest arbitration provisions:

To appreciate some of the problems that could result from rules for a business being written by someone who does not know the business well, consider the problems in the text of the EFCA mandatory arbitration provision itself. This provision would be the most important change in labor law in 60 years or more, yet its vagueness would sow confusion and litigation. Who will the arbitrators be? How will they be selected, and by whom? How would the arbitrators go about deciding the contract terms, and what knowledge of the company and industry would they bring to the task? If the arbitrator writes a terrible, one-sided contract—as has happened in other jurisdictions with “interest” arbitration—what opportunity would there be to get it reviewed by a court, and what legal standard would the court apply?

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CBS News has released the results of a comprehensive poll of 1142 random participants, taken over last weekend. On the issue of EFCA, the results: 

Congress is considering legislation, commonly referred to as "card check," that could make it easier for workers to form labor unions.  The legislation would allow people to form a union by publicly signing a card, without a secret ballot vote. 38% favor allowing people to form a union by publicly signing a card without a secret ballot, but more - 45% - are opposed.

As a follow-up question, respondents were asked: “Do you think labor unions have too much influence, too little influence, or about the right amount of influence on American life and politics today?”  The responses:

47% said “too much”

18% said “too little”

24% said “the right amount”

One can only hope that the moderates in Congress have seen these poll results.

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On the House floor Friday, Minority Whip Eric Cantor (R-VA) and Majority Leader Steny Hoyer (D-MD) engaged in a brief dialogue regarding the Employee Free Choice Act.  In response to Rep. Cantor's inquiry regarding the majority's efforts to bring the bill to the floor, Rep. Hoyer responded: 

Now, having said that, we passed this bill. We passed it pretty handily. We passed it in the last Congress, and it’s our expectation that the Senate is going to be dealing with this legislation. They have not yet considered it; and it is my belief that we want to see whether they can pass it. We believe they can. We are going to be interested in what action they take.

So, it would seem that the current strategy is indeed to let the Senate try to pass something first, after which the House would likely be in position to approve it. 

On the issue of EFCA's impact on the secret ballot election, Rep. Hoyer claimed:

We don’t believe this kills the right of the employees to have a free election at all.  Period.

 

We believe in fact the employee has that choice. The employee has the absolute right to respond, ‘‘No, I don’t want to sign your card. Let’s have an election. And I will sign it for that purpose, and that purpose only, to give you the 30 percent you need to get the election.’’

 

I think I’m right on 30 percent....

Unfortunately, that's not at all what the bill says -- that an employee can specify for what purpose his or her card might be submitted to the National Labor Relations Board.  All it says is:

If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative...

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The text of EFCA 2009 as introduced by Rep. George Miller (D-CA) is identical to the version of the bill which failed to pass in 2007 as H.R. 800.  The text of the bill is available here.

And here is the link to the MLA White Paper which reviews the bill's various provisions, includes a critical analysis, outlines its prospects in 2009, and identifies some potential alternative elements of labor law reform.

Update (3/10; 9:00 p.m.):  We've attached the text of the National Labor Relations Act with EFCA's proposed amendments in context, available here.

Update (3/11; 10:00 a.m.):  The bill number in the House is H.R. 1409.

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As we reported yesterday, Rep. John Kilne (R-MN) and Sen. Jim DeMint (R-SC) introduced the Secret Ballot Protection Act in the House and Senate.  The text of the House version, H.R. 1176, is now available at GovTrack.us and Thomas.gov.  The introduction to the bill reads:

Congress finds that--

 

(1) the right of employees under the National Labor Relations Act to choose whether to be represented by a labor organization by way of secret ballot election conducted by the National Labor Relations Board is among the most important protections afforded under Federal labor law;

 

(2) the right of employees to choose by secret ballot is the only method that ensures a choice free of coercion, intimidation, irregularity, or illegality; and

 

(3) the recognition of a labor organization by using a private agreement, rather than a secret ballot election overseen by the National Labor Relations Board, threatens the freedom of employees to choose whether to be represented by a labor organization, and severely limits the ability of the National Labor Relations Board to ensure the protection of workers.

The bill further amends the National Labor Relations Act to make it an Unfair Labor Practice (ULP):

...to cause or attempt to cause an employer to recognize or bargain collectively with a representative of a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9.

More coverage:

• Statement of Rep. John Boehner (R-OH)
• "Fight Over Union Organizing Legislation Heats Up a Bit" -- WSJ.com Washington Wire 
• "Fighting the Card Check Bill" -- Human Events Online
• "GOP Introduces Bill Mandating Secret Ballot Union Elections" -- Workforce Management
• "Card Check: 'Who's Really Lying?'" -- ShopFloor.org
• "Beware of the Big Lie Bill" -- AFL-CIO blog

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Our friends over at Shopfloor picked up an interesting comment yesterday by Fred Barnes, Executive Editor of The Weekly Standard. In a panel discussion on Fox News, Mr. Barnes opined that the labor movement was “losing ground” on the Employee Free Choice Act:

In the last congress, they had something like 230 cosponsors for the card check bill. This time they're having trouble getting to 200 cosponsors in the House, even though there are more Democrats in the House than there were in the last congress.

And now you have five or six senators, most of them Democrats, who are now kind of queasy on it who weren't before, and are talking about well, maybe there's some alternative to it. So organized labor is trying to make up for lost ground.

In fact, there were 234 House co-sponsors in the 110th Congress, which had 233 House Democrats. The current Congress boasts 255 House Democrats, so Mr. Barnes is correct that labor might have expected even more co-sponsors this time around.

A January 29, 2009 “Dear Colleague” email message from House Education and Labor Committee Chair Rep. George Miller (D-CA) set the close of business on Tuesday, February 3 as the deadline to be an “original co-sponsor” of the bill.

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Organized labor advocacy group, American Rights at Work, released a new TV ad, “The Real Secret,” this weekend. Heavy on the fear-mongering, the ad hammers on the more recent union talking point: that EFCA does not “eliminate” the secret-ballot.

The ad’s script:

“The Real Secret” TV: 30

VO: Corporate greed. It’s caused a meltdown of our economy. Just look at the news … or your retirement account.

Now, greedy CEOs want to prevent workers from joining unions to level the playing field. Their new scheme to keep wages low? Spreading lies about the Employee Free Choice Act.

The truth is the Employee Free Choice Act absolutely protects workers’ right to choose a secret ballot election. But the choice would be the workers. Not their bosses.

That’s the secret Big Business doesn’t want you to know.

On Screen Disclaimer: Paid for by American Rights at Work

The emergence of this approach would seem an acknowledgment that EFCA’s proponents have conceded losing the secret-ballot issue. It’s also a silly argument intended to mislead those in the general public who might not have a thorough understanding of how the National Labor Relations Board’s RC representation process works.

No, the EFCA does not eliminate the secret-ballot procedure language from the NLRA. It only totally eliminates the secret ballot for all workers when a union collects and submits cards from at least 50 percent of a workforce to the NLRB. Arguably a group of employees could still file for an election when 30 to 49 percent of the workforce has signed cards -- but they won't. It will never actually happen -- in part, because the union organizers control the cards, not the employees. What's more, right now, a union needs cards from only 30 percent of the workers to get an election scheduled, and organizers still rarely file until they have cards from 65-75 percent of the proposed unit. This is because unions understand that the supposed support indicated by signed authorization cards is artificially exaggerated. Once the employees receive balanced information from a variety of sources, and have the opportunity to vote in private, the union usually loses support -- and the unions know it.

More commentary on this issue:

• Justin Wilson's blog post "The 30-50 Myth" at the Center for Union Facts' blog
• "Employee Free Choice Act Effectively Eliminates Secret Ballot Organizing Elections" by James Sherk, Heritage Foundation

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