Employee Free Choice Stalled for Now

Apr 2009

The so-called Employee Free Choice Act had 200 sponsors in the U.S. House of Representatives, short of what proponents said they wanted to send the bill to the floor but enough for labor unions to be optimistic that a new era for organizing was close at hand.  While a cat-and-mouse game was played by the “Blue Dog” Democrats in the House, who did not want to take a risk on this controversial proposal, the bill was introduced in the Senate.
 
But the chances of getting a filibuster-proof 60 votes in the Senate fell to near zero when Republican Sen. Arlen Specter of Pennsylvania announced he wouldn’t vote for the measure. Democrats, who have 59 votes in the Senate provided Al Franken wins Minnesota’s still-contested seat, had thought Specter might vote in favor of the bill, considering that he had done so in 2007.

The process is now stalled. Democrats in the House, who could easily pass the measure if they chose to do so, have no desire to vote now on a controversial measure that’s going nowhere.

Meanwhile, an attempt by some businesses, to find a compromise has fallen flat at least for now.  Three big retailers that would be targets if the Free Choice Act was enacted - Costco Wholesale Corp., Whole Foods Inc. and Starbucks Corp. proposed an alternative that was promptly rejected by all sides.

The Free Choice Act would eliminate the secret ballot election, according to John Sarno, president of the Employers Association of New Jersey.  Instead, a union will be legally recognized if 51% of authorization cards are signed. Since the  Free Choice Act circumvents an open campaign and fair election for union recognition, employers are denied the right to make a good faith refusal to recognize a union and fairly make their case against the union during an election campaign.

Unions justify this denial, arguing that Free Choice merely permits workers to exercise their right to union representation without being subjected to lengthy, often contentious, union election drives.  However, the employer’s right to freely and fairly campaign against union recognition is constitutionally guaranteed.  Therefore, “‘card check’ recognition of a labor union may run afoul of the First Amendment right to an open and fair election, according to Sarno.

The Free Choice Act would also impose compulsory binding arbitration if management and labor cannot come to terms on the first contract.  Under existing law, parties must negotiate in good faith but a government solution is not imposed in the absence of a voluntary agreement.

Sarno says imposing contract terms over employer (or union) objections “may raise serious due process issues.”

While the Free Choice Act remains in political limbo for now, unions are discussing a compromise behind the scenes.  One compromise being discussed is giving management an opportunity to challenge the authenticity of the card signatures.  Another is to grant a ten-day “quickie” campaign and election.  Still another would require rigorous judicial review of arbitrator’s binding decisions.

Sarno doubts that a compromise bill will be introduced soon but will be a big part of the 2010 Congressional elections.