Former Senator Arlen Specter passed away on Sunday. Per the Washington Post:

For most of his 30 years as Pennsylvania’s longest-serving U.S. senator, Specter was a Republican, though often at odds with the GOP leadership. His breaks with his party were hardly a surprise: He had begun his political career as a Democrat and ended it as one, too.

Specter famously changed his party affiliation in 2010, after breaking ranks with the G.O.P. on the Stimulus, but he was then defeated in a Democratic primary. Throughout the legislative debate over the Employee Free Choice Act, Sen. Specter attempted to navigate a moderate position — initially supporting the proposal, but ultimately casting the vote against cloture which effectively killed the bill in the 110th Congress. In a widely viewed statement on the Senate floor, Sen. Specter criticized what he perceived to be extreme adherence to party-lines, without objective consideration of policy:

The emphasis on bipartisanship is, I think, misplaced. There is no special virtue in having some Republicans and some Democrats take similar positions. The desired value, really, is independent thought and an objective judgment. It obviously can’t be that all Democrats come to one conclusion and all Republicans come to the opposite conclusion by expressing their individual objective judgments. Senators’ sentiments expressed in the cloakroom frequently differ dramatically from their votes in the well of the Senate. The nation would be better served, in my opinion, with public policy determined by independent, objective legislators’ judgments.

The Senator submitted into the record an appendix of "Some Suggested Revisions to the National Labor Relations Act," indicating — at the time — that he might revisit his position on EFCA if the parties refused to consider any of them. Many of these ideas were more fully outlined in the Senator’s 2008 Policy Essay in the Harvard Journal on Legislation, “Representation Without Intimidation: Securing Workers’ Right To Choose Under The National Labor Relations Act". The Senator’s suggestions included:

  • Establishing a timetable:

(a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union

(b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension.

(c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.

  • Adding unfair labor practices:

    • an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign;
    • an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;
    • an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.
  • Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired
  • Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign
  • Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service
  • On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.
  • Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith
  • Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;
  • Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.
  • If the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.
  • Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith
  • Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.

You can read more about these ideas and subsequent administrative action on some of them at our EFCA tag, or in this 2009 MLA White Paper, "The Employee Free Choice Actin the 111th Congress".