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EFCA: The Saga Continues, As Does the Misinformation

September 4, 2009

Excerpted from Federal Employment Law Insider, which is written by attorneys at the law firms of McGuireWoods LLP and Fortney & Scott, LLC

Through the first part of the summer, there were no major developments regarding the Employee Free Choice Act (EFCA). Essentially, both sides were maintaining the same positions. There have been, of course, occasional releases of "studies" and proposals by ostensibly neutral parties, but those volleys were the political equivalent of random shots exchanged by military pickets in an attempt to pick off opportune targets. They did not signal any major offensive or change in position.

On July 17, however, the New York Times published a report by Steven Greenhouse, a nationally recognized reporter who has been perhaps the most perceptive (and best connected) observer of the U.S. labor movement. His report was an implicit recognition that the public relations campaign waged by the U.S. Chamber of Commerce and allied business interests had succeeded in captioning the EFCA as the "card-check" bill and made card-check recognition unacceptable to much of the public and, most important, 12 moderate Democratic senators who had either flatly opposed card check or expressed considerable doubts about it.

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Compromise possible?
After citing the "power of moderate Democrats to constrain their party's labor legislative efforts," Greenhouse reported that several prolabor Democratic senators had agreed to refashion the bill, replacing card check with some form of "quickie" election requiring that a National Labor Relations Board (NLRB)-conducted election be held within five to 10 days after a labor union or the employees submit an election petition signed by 30 percent or more of the workers. This reported compromise bill would keep intact the substantially enhanced election-related unfair labor practice penalties and the requirement that a government arbitrator write the initial labor contract if the parties could not agree within 90 days of union certification.

Follow-up inquiries from the media, and especially the Bureau of National Affairs, which publishes a "Daily Labor Report," found a number of the senators responding "no comment" or "[n]othing is agreed to until everything is agreed to." Several labor leaders also disavowed a willingness to accept any concessions and asserted that they expected the passage of the EFCA as initially drafted.

If this tactic was intended to divide the business community or, more likely, turn the flank by offering "concessions" attractive to the 12 moderate Democrats, it seemingly has not worked. The business community had already turned its PR campaign from card check to the first contract arbitration. Businesses appear to be united by the fear of having to survive for two years under a contract written by an arbitrator after only a short hearing.

It also seems that even though some union officials did participate in Capitol Hill discussions on compromise, the severe infighting that has been going on recently between the AFL-CIO on the one hand and the Change to Win Federation on the other, as well as fractures within Change to Win between the Service Employees International Union and UNITE-HERE, may have undermined unions' political unity, as Greenhouse had earlier reported.

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Bottom line
The bottom line -- at least for now -- seems to be that there is growing frustration in the ranks of organized labor's political friends on the Hill as businesses' PR efforts and grassroots campaigns have strengthened the concerns of moderate Democratic senators. In all probability, changes in the next few months will only be small and mostly tactical. Organized labor still hopes to obtain larger congressional margins in the next national elections. Until those hopes diminish, it is unlikely that labor will agree to concessions that will cost unions their best opportunity in 50 years to adjust the law to facilitate organizing -- and possibly the survival of the American labor movement in the face of the increasingly competitive international markets.

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Copyright 2009 M. Lee Smith Publishers LLC. FEDERAL EMPLOYMENT LAW INSIDER . FEDERAL EMPLOYMENT LAW INSIDER does not attempt to offer solutions to individual problems but rather to provide information about current developments in federal employment law. Questions about individual problems should be addressed to the federal employment law attorney of your choice.