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Labor Law Legislation

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The Employee Free Choice Act (EFCA) remains the most high-profile labor relations legislation pending in Congress.  The legislation (H.R. 1409 / S. 560), also known as the “card check bill,” would dramatically change the rules to unionize an organization’s workforce. 

Due largely to the lobbying efforts by organizations like SHRM, many in Congress are having serious second thoughts about supporting EFCA.  Passage in the House is still a near certainty, but the real battle is in the U.S. Senate.

Here’s why:  All 40 Republican senators remain opposed to EFCA.  Thus, all 60 remaining senators would need to vote to cut off a filibuster and allow the bill to advance to a final vote.  However, several Democratic senators now are expressing various “concerns” about EFCA.  These senators are:

  1. Sen. Michael Bennet (D-CO)
  2. Sen. Thomas Carper (D-DE)
  3. Sen. Dianne Feinstein (D-CA)
  4.  Sen. Mary Landrieu (D-LA)
  5. Sen. Blanche Lincoln (D-AR)
  6. Sen. Ben Nelson (D-NE)
  7. Sen. Mark Pryor (D-AR)
  8. Sen. Mark Udall (D-CO)
  9. Sen. Arlen Specter (D-PA)
  10. Sen. Mark Warner (D-VA)
  11. Sen. Jim Webb (D-VA)

As a result, no one expects EFCA – in its current form – to reach President Obama’s desk for signature. 

So, the plot thickens as EFCA supporters adopt a new strategy and go on the offensive:  To reassure the above-mentioned “concerned” Democratic senators and gain their support, lobbyists for organized labor have begun to “discuss” several alternatives or changes to the original EFCA.  These include the following four new ideas:

Quick Elections

To address concerns that EFCA effectively eliminates the secure, private ballot for employees, some EFCA proponents are proposing an expedited election format.  When Sen. Specter (D-PA) announced his opposition to EFCA in March, he also released a list of labor law reforms that he does support.  Among these was establishing a timetable to require a representation election be held within 10 days of the filing of a majority of signed authorization cards.

Mail-in Ballots

This proposal, informally referred to as “postcard check,” would allow employees to mail their authorization cards directly to the National Labor Relations Board, thereby eliminating the potential for workplace intimidation by labor or management.  Sen. Feinstein (D-CA) is likely to be a proponent of this approach.

Final Best Offer Arbitration

In Major League Baseball, an arbitrator adopts the final offer of either the player or the team when determining a player’s contract terms.  Some are advocating that a federal arbitrator choose the final, best offer of either a union or employer in a similar way on first contracts.

Increased Union Access to Employees

Labor organizations seek more access to employees in order to present their best arguments in favor of joining a union.  Rep. Joe Sestak (D-PA) has introduced a proposal, the National Labor Relations Modernization Act (H.R. 1355), which would require employers to give unions equal opportunity to make announcements, display signs, and distribute literature in the workplace.

To date, none of these alternative proposals has gained much momentum.  The proof of this is the fact that Senate leaders refuse to announce any timeframe for when EFCA will be debated.

However, the political winds could shift. 

As we approach the second half of 2009, Members of Congress will begin thinking about the 2010 Elections – and organized labor will begin taking notice of who supports EFCA and who does not.  As a result, some in Congress may be looking for a “compromise” EFCA bill that will allow them to vote for a pro-labor bill – and allow organized labor to claim victory.

Be assured that SHRM’s Government Affairs team is monitoring developments daily.  You’ll be the first to know if any alternatives begin to gain traction.



 In This Issue


Upcoming Webcast on Health Care Reform
Back to the Future: Health Care Reform 15 Years Later

Labor Law Legislation
“Card Check” is Stalled, But Still Alive

Retirement Security
House Committee Approves Investment Protections

Supreme Court Decision
Important Ruling for Employers in ADEA Case


 Next Issue


The next issue of HR Issues Update will be published on Friday, July 10, 2009.

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