Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The initial predictions that the Employee Free Choice Act (EFCA) would be introduced in Congress within the first 100 days of the Obama administration may yet prove to be true. Earlier this year, as interest and attention turned to our failing economy and emergency rescue measures, many revised their estimates, forecasting that EFCA would not make its debut until this spring at the earliest. It now appears, however, that EFCA may be reintroduced as soon as Monday. According to a number of sources, including the National Association of Manufacturer’s blog ShopFloor and the Los Angeles County Federation of Labor, AFL-CIO, rumor has it that Rep. George Miller (D-Calif.) and Sen. Ted Kennedy (D-Mass.) are expected to introduce EFCA – also known as the “card check” legislation – on March 9, 2009. If this rumor is accurate, Monday will spark the beginning of what promises to be a highly contentious legislative battle.
EFCA would make it easier for unions to organize employees, as it enables a union to be certified as an exclusive bargaining representative based solely on its collecting a sufficient number of authorization cards from employees (the “card check” provision), and without being required to win a secret ballot election conducted by the National Labor Relations Board (NLRB). Equally controversial is a provision of the bill requiring mandatory arbitration of a first contract if the union and employer cannot agree to contract terms within 90 days after they begin bargaining. EFCA also increases employer penalties for violations of the National Labor Relations Act (NLRA). (For more information on EFCA, see Littler’s Q & A with Bob Battista)
Organized labor has launched an unprecedented campaign promoting EFCA’s introduction and passage. Earlier this week, the AFL-CIO’s Executive Council, meeting in Miami, touted the passage of EFCA as its main priority. In video-taped remarks, President Obama – who co-sponsored EFCA when it was first introduced in 2007 – voiced his support for this bill, and seemed confident of its passage. In his statement Obama reiterated his support for organized labor in general, and EFCA in particular:
I do not view the labor movement as part of the problem. To me, and to my administration, labor unions are a big part of the solution. We need to level the playing field for workers and the unions that represent their interests – because we cannot have a strong middle class without a strong labor movement.
The truth is, the road ahead will not be easy. . . . And as we confront this crisis and work to provide health care to every American, rebuild our nation’s infrastructure, move toward a clean energy economy, and pass the Employee Free Choice Act, I want you to know that you will always have a seat at the table.
Secretary of Labor Hilda Solis made her first public speech as an official member of Obama’s cabinet at this Executive Council meeting. She criticized what she perceived as the Department of Labor’s inaction towards worker rights during the Bush administration, and declared: “there’s a new sheriff in town.” She also vowed to enforce EFCA – which she, too, co-sponsored in 2007 – if enacted.
At the conference, the AFL-CIO described how it is ratcheting up its lobbying efforts to secure EFCA’s passage. Such efforts include a massive letter-writing campaign aimed at Sen. Arlen Specter (R-Pa), the only Republican senator to support the bill during the 110th Congress. Specter and a growing number of others in Congress have been noticeably non-committal in their support this session, now that EFCA’s passage seems logistically more likely. Other senators will be similarly targeted, as 60 votes are needed for cloture on a likely filibuster, and the numbers are not guaranteed at this point given intense employer opposition to EFCA.
Meanwhile, opponents of this bill have introduced legislation in both the House and Senate aimed to preserve secret ballot union elections. The Secret Ballot Protection Act (S. 478; H.R. 1176) was introduced last week – a move that may prove to have been the catalyst for an earlier introduction of EFCA than had recently been expected. It had been widely believed that EFCA would not be reintroduced until a winner in the Minnesota Senate race had been declared. Al Franken, the Democratic candidate holding a tentative lead, is in favor of EFCA, and his vote could help end the anticipated filibuster.
It has also been rumored that EFCA would be considered first in the Senate, where support for the measure is narrower. According to an article in the Wall Street Journal, AFL-CIO President John Sweeney said he expected EFCA to be introduced in the Senate, and acknowledged that he wouldn’t be surprised if the bill were amended. Whether and in what form EFCA is passed may be revealed earlier than anticipated.