July 14, 2008

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EFCA Fate Up In The Air

In a previous Alert in November 2008, we noted the significance of the Senate composition to the fate of the so-called Employee Free Choice Act ("EFCA" or the "bill"). Since that time there have been major developments, but the Senate continues to be the key to EFCA's future.

EFCA was introduced in the House of Representatives and the Senate on March 10, 2009, following the Senate Health, Education, Labor and Pensions Committee hearing that touted the "benefits" of unionization and featured several pro-EFCA witnesses. In its current form, EFCA would (1) establish a card check procedure that would effectively eliminate secret ballot elections; (2) have arbitrators impose contracts on employers and unions that do not reach agreement on initial contracts within as little as 120 days; and (3) impose fines and injunctions for unfair labor practices committed by employers. A recent Forbes article noted that "[i]f EFCA was enacted, a worker could find him or herself in a union he or she didn't get to vote on, abiding by a contract they didn't get to vote on, paying dues to a union they didn't agree to and whose political ideology they may not share."1 The potential effect of the proposed legislation is compounded by President Obama's nomination of two staunchly pro-labor union attorneys and one Republican to fill the three vacancies on the National Labor Relations Board. If these individuals are confirmed, the Board's composition will shift significantly in labor's direction.

EFCA appeared to have overwhelming Democratic support in the 110th Congress, and the number of Democrats in Congress has since grown. On June 30, 2009, the Minnesota Supreme Court unanimously declared Al Franken (D-MN) the winner in the disputed Minnesota Senate election. Franken's victory and subsequent announcement that he co-sponsored EFCA within hours of being sworn in theoretically gives Democrats the 60 votes needed to quash a filibuster and bring EFCA to the Senate floor for a vote (where only 50 votes are needed for passage as Vice President Biden would break a 50-50 tie).

However, two years ago it was clear that the bill would not pass the Senate and that President Bush would veto it even if it did pass. Now that Democrats have significantly increased their numbers in the Senate and President Obama has vowed to sign the bill if passed, business groups are more active in opposing the bill and support for the current version of EFCA has decreased in the 111th Congress. Because Democrats can no longer count on all 60 votes, the votes of a handful of moderate Democrats are critical to the fate of the bill in its current form or a possibly modified form.

A number of Democrats have expressed reservations about the bill. In April of this year, Arlen Specter (D-PA) changed his party affiliation to Democrat. Despite Senator Specter's change in party affiliation, he apparently remains opposed to the current version of EFCA, although he has some history of changing his position on this issue. Blanche Lincoln (D-AR), who was previously seen as a supporter, has been publicly critical of the bill, calling it "divisive" and saying that the Senate should focus on creating jobs and improving the economy instead. It is also unclear whether Dianne Feinstein (D-CA), who co-sponsored EFCA in 2007, will support it this time around. Other Seantors who have backed off their previous support of the bill include Mary Landrieu (D-LA) and Mark Pryor (D-AR). Questions also exist about where Senators Michael Bennet (D-CO), Jim Webb (D-VA), John Tester (D-MT), and Max Baucus (D-MT) stand with respect to EFCA.

There are a few Senators who are attempting to maneuver through this controversial issue by separating cloture and passage. Mark Udall (D-CO) and Mark Warner (D-VA) have indicated that they will vote in favor of cloture, but insist that they have not decided how they will vote on the bill itself. Conversely, Ben Nelson (D-NE) is opposed to the bill, but unsure on whether he will support cloture.

Because the Democrats do not yet have the 60 votes they need to break a filibuster, Tom Harkin (D-IA) is among those working to craft a compromise (sometimes referred to as "EFCA Lite") that would attract the support of the moderate Democrats who have expressed concerns about EFCA in its current form or have not publicly committed to supporting it. The possibilities being explored include (1) the use of expedited or "quickie" elections as an alternative to mandatory "card check" certification of a union; (2) granting labor unions "equal access" to an employer's workplace in order to campaign; and (3) extending the period of time before mandatory arbitration in first contract negotiations, but retaining the use of mandatory arbitration that would result in an arbitrator-imposed contract.

If you have questions regarding EFCA and how your business may be affected, or any other aspect of labor relations, please contact a member of our labor and employment practice group.

Nate R. Niemuth


1 See Katie Packer, The Employee ‘Forced' Choice Act, (July 8, 2009), http://www.forbes.com/2009/07/08/employee-free-choice-act-opinions-contributors-unions.html (providing an overview of the financial impact of EFCA to unions, politicians, and the country).


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