Specter Will Vote Against Cloture on the Employee Free Choice Act

In a move sure to be welcomed by the business community, Senator Arlen Specter (R-Pa) has announced that he opposes the Employee Free Choice Act (EFCA) at this time, and will vote against cloture.  Speaking on the Senate floor, Specter claimed that given the current economic climate, “[t]his is a particularly bad time to enact Employee Free Choice legislation. . . I have made up my mind. Knowing I will not support cloture on this bill, senators may decide to move on and amend the NLRA [National Labor Relations Act] as I have suggested . . . ” Specter suggests amending the NLRA to require quicker elections, easier access by unions to employees, and heftier penalties for employer unfair labor practices, among other measures. He argues that this is “a better way to expand labor's clout in collective bargaining” as opposed to eliminating the secret ballot and instituting mandatory arbitration in the event a first contract is not reached within a specified period of time.

Specter’s position on this issue is significant, as he was the only Republican senator to join with the Democrats on the cloture issue when this bill was first introduced in 2007. Back then, the proponents of the measure – commonly known as the “card check” bill – were nine votes short of avoiding the inevitable filibuster. EFCA supporters were more optimistic this year, given the Democratic gains in Congress and support by a President who co-sponsored the original bill. Despite these gains, however, Democrats still seem to lack the 60 votes needed to invoke cloture and therefore need the support of at least one Republican senator to keep the bill alive (assuming that the Democrats support the bill). Specter’s change of heart is no doubt a harbinger of opposition to come within Republican – and perhaps Democratic – ranks. Specter’s suggestion to amend the NLRA in lieu of supporting EFCA strongly suggests that he might be amenable to a compromise measure, such as the National Labor Relations Modernization Act or a proposal announced by some major retailers several days ago (see below) or some other compromise.

Specter himself suggests 12 amendments to the NLRA on his website. His proposals include establishing a timetable for holding a union election and ensuring the onset of bargaining following an election. He also proposes making it an unfair labor practice for both unions and employers to visit employees’ homes without prior consent during an election campaign, for employers to hold “captive audience” speeches unless the union has equal time to do so, and for both sides to engage in campaign-related activities within 24 hours prior to an election. Stiffer penalties are also proposed for both union and employer violations of the NLRA during an election campaign. In place of binding arbitration in the event a first contract is not reached, Specter proposes mediation after 120 days. A more stringent Board review process is outlined in the event allegations are made that a party is not negotiating in good faith. The proposals also include an order to impose injunctive relief, costs and attorney’s fees if either party is found to be in bad faith, engages in harassment, or causes unnecessary delay in the negotiation process. The proposal suggests modifying the NLRA to give courts broader discretion to impose a Gissel (forced union acceptance) order on a finding that the environment has deteriorated to the extent a fair election is not possible.

Some of these amendments are similar to suggestions embodied in a compromise measure proposed by three major corporations this past Sunday. During a press conference, executives of Starbucks, Costco, and Whole Foods suggested ideas for a compromise measure. Known as the “third way,” this proposal would maintain an employer’s right to demand a secret ballot union election and omit the provision in EFCA mandating binding arbitration. This compromise would, however, keep the stiffer penalties outlined in the bill should an employer commit unfair labor practices before union elections or refuse to engage in collective bargaining. The compromise similarly strengthens proposed penalties for union violations, and would make it easier for employers to call elections to decertify a union. Additionally, the “third way” compromise would give unions equal access to workers in regard to captive audience speeches before union elections.

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.