The Employee Free Choice Act is dead, long live the Employee Free
Choice Act.
On Tuesday Sen. Arlen Specter D-PA announced he will be switching
over from the Republican to the Democratic Party; a switch which
may allow for a new version of EFCA to pass both the House and
Senate. Specter, who was a key supporter of EFCA in the past,
announced in March he would not support the current bill. Sens.
Dianne Feinstein (D-Calif.), Blanche Lincoln (D-Ark.), and Jim
Webb (D-Va.) soon followed, denying Democrats the 60 votes needed
in the Senate to bring the bill to the floor.
EFCA has sparked fierce debate between Democrats and Big Labor,
who support the bill, and Republicans and businesses who fear the
effects on the economy and worker freedom. The measure has two
main provisions. The “card check” portion would make the secret
ballot nearly impossible in elections to create a union, and the
“arbitration” provision would allow for forced government
contracts if an employer and a union cannot come to an agreement
within 120 days of a new union forming, if one side asks the
government to step in.
Specter’s opposition was considered a “serious setback” at best
or “a death blow” at worst to EFCA. His objection, however, came
with a caveat. In his floor statement he pointed to the current
economic condition of the country, saying this would be a “bad
time” to bring up the legislation. He further softened his
opposition by saying, “If efforts are unsuccessful to give Labor
sufficient bargaining power through amendments to the NLRA, then
I would be willing to reconsider Employees’ Free Choice
legislation when the economy returns to normalcy.”
During his press conference Tuesday Specter maintained he will
still not support EFCA, but both the left and the right believe
this commitment is not set in stone. Even before he became a
Democrat, Anna Burger, Service Employees International Union
Secretary Treasurer, when asked about Specter possibly flipping
and again supporting EFCA, responded, “Oh sure, this is Arlen
Specter we’re talking about.”
Specter’s lukewarm dissent and other senatorial defections have
not brought solace to Republicans who oppose the bill. Sen. John
Ensign (R-Nev.) remarked last week, “It definitely has lost
support, but there’s a caveat.… They say they can’t support the
bill ‘as it stands now.’ I get nervous when I hear that saying.”
In other words, small changes to the language of the bill could
provide cover for Specter and the other defectors to flip once
again and support it.
EFCA supporters have already signaled they could entertain the
possibility of a compromise on certain aspects of the bill. Andy
Stern, President of SEIU and one of the key advocates of EFCA,
told the Washington Post on April 20 he would
consider an alternative to the card check provision. He
elaborated, “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.”
Even with a compromise on card check, EFCA opponents are still
leery of the bill. Many are now pointing to the forced government
contract or “arbitration” provision as the main problem with the
legislation. Newt Gingrich has called arbitration the real threat
in EFCA, saying, “EFCA’s imposed binding arbitration would
irreparably wound one of the most extraordinary features in
American society, the willingness to take risk to build an
enterprise that generates prosperity for one’s family and
community. It must never be allowed to be signed into law.”
If passed, EFCA would allow either a union or an employer to
request an arbitrator to write a contract from scratch if the
parties could not agree on one of their own within 120 days of
the formation of a new union. EFCA opponents maintain this forced
government contract could be created by a bureaucrat without any
experience in the company and could create provisions that could
harm both the worker and the employer. Both parties would be
bound by the agreement for two years and could only modify it by
mutual consent. Employers are fearful of the provision because
the arbitrators will be appointed by members of the Obama
Administration, which was heavily supported by organized labor in
the 2008 election.
The only sure thing in the current EFCA debate is that it is not
over. The ever changing political landscape as well as the
possibility of the elimination of the card check could allow for
EFCA’s passage in the near future. Arlen Specter’s switch does
not change the playing field but does illustrate his
unpredictability on many issues including EFCA. A new bill
without card check but with the forced government contract
provision may give Specter and others an excuse to flip yet again
and support the bill.
