August 7, 2009 Volume 110 Number 15

Employee Free Choice Act still on track, but delayed

A labor law reform long sought by the union movement — the Employee Free Choice Act — will have to wait a little longer.

The U.S. Senate was expected to adjourn Aug. 7 until after Labor Day without passing the bill. The Employee Free Choice Act makes several changes to the National Labor Relations Act to make it easier for workers to unionize and get a first contract.

The bill is considered assured of victory in the U.S. House, which passed it in 2007, but in the Senate, backers need 60 votes out of 100 in order to prevent a certain Republican filibuster. Democrat Al Franken of Minnesota was supposed to be that 60th vote. He was seated July 7, and made it his first act in office to sign on as a co-sponsor of the bill.

The Employee Free Choice Act has 40 co-sponsors in the Senate and 226 in the House; all Oregon and Washington Democrats are co-sponsors.

But labor leaders now must hold their breath that Sen. Ted Kennedy (D-Massachusetts) will return to health enough to cast the 60th vote. Kennedy has brain cancer, and hasn’t been to the Capitol since April. In the event of his death, Massachusetts will hold an expedited primary and general election to choose his replacement, which is considered likely to be a Democrat. But that could delay a vote three or four months.

Ninety-one-year-old Sen. Robert Byrd (D - West Virginia) is also in ill health, but if he dies in office or steps down, a Democratic governor would choose his replacement.

Meanwhile, union ally Sen. Tom Harkin (D-Iowa) has led behind-the-scenes talks to shore up support among some conservative Democrats, by tentatively agreeing to modify some parts of the bill. A key part of the bill has been requiring employers to recognize unions on the basis of majority sign-up, also known as card-check. Under the National Labor Relations Act, an employer can recognize a union if a majority of workers signs cards requesting it, but the employer can choose instead to have a workplace union election. That election is typically four to six weeks later, and can be delayed further if the employer files legal objections to how the proposed bargaining unit is defined. During the wait, employers often use their power in the workplace to wage intensive anti-union campaigns, which most often include requiring workers to attend anti-union meetings.

It now appears the price of bringing along the conservative Democrats will be amending the card-check provision out of the Employee Free Choice Act. The latest word is that card-check would be replaced by a requirement that an election occur within eight days. Legal wrangling over who is eligible to join would be resolved after the votes were cast. An eight-day election cycle would still grease the skids for pro-union workers, but to make up for the loss of card- check, union leaders are pushing behind the scenes to add a provision to restrict employers’ right to hold mandatory-attendance anti-union meetings.

“The important thing is to preserve the essential elements of the Employee Free Choice Act, restoring the freedom to organize and collectively bargain,” said AFL-CIO Organizing Director Stewart Acuff — not the details of how exactly to achieve that goal. Acuff is directing the campaign to pass the bill.

Harkin’s compromise bill may also lengthen the timeline for binding arbitration. The National Labor Relations Act mandates that employers bargain “in good faith” with unions to reach a contract. But in practice, anti-union employers commonly stonewall in bargaining, which gives anti-union workers a chance to vote out the union after a year.

To overcome that, the Employee Free Choice Act allows either party to request federal mediation if no agreement has been reached after 90 days of bargaining. Then 30 days after that, at the request of either party, the contract would be given to a neutral arbitrator to decide. The arbitrator would pick a reasonable contract, which would be binding for two years.

Business opponents of the Employee Free Choice Act — having won assurance that the card-check provision will be deleted from the bill — are now turning their attention to the binding arbitration provision, arguing that it would allow a federal bureaucrat to dictate how a company should be run. In fact, the Employee Free Choice Act doesn’t impose binding arbitration. One side — which almost certainly would be the union – has to request it. If both parties feel there’s progress being made and a chance of agreement, they can agree to extend their own negotiations. The union side would be expected to want a say too, so in all likelihood, unions would request binding arbitration only when they felt they were unlikely to get a reasonable first contract.

Harkin’s closed-door talks are considering changing that provision to 120 days for mediation, and 60 days after that for arbitration.

But nobody is talking about getting rid of the third cornerstone of the bill — increased penalties for employer labor law violations. The Employee Free Choice Act would allow for civil damages and triple back pay when an employer fires a worker for supporting a union campaign.

During the recess, with members of Congress home in their districts, both supporters and opponents of the Employee Free Choice Act are planning an organizing and publicity blitz.

Despite all the delays and setbacks, union political staff in Washington, D.C., say they are still confident the Employee Free Choice Act will pass this year, in one form or another.

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