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EFCA Inevitable?
With the inauguration of a new president and a Democratic majority in Congress, businesses across a wide variety of sectors and industries are intent on blocking the passage of the Employee Free Choice Act, legislation that would make it legal to start a union without a secret-ballot election. Under EFCA, workers would just need a majority of employees to sign cards saying they support a union for the union to be formed. The bill could also mandate binding arbitration to set wages, benefits and working conditions, if an employer and union cannot agree on a contract within 120 days. In 2007, the measure -- commonly called "card check" -- passed in the House of Representatives but stalled in the Senate on a procedural vote. However that vote was all but moot since President George W. Bush announced he would veto the bill. This time around, President Barack Obama -- a supporter of EFCA -- is in office, and with 59 Democrats in the Senate, as well as liberal-leaning Sen. Arlen Specter (R-Pa.), the measure seems to have its best chance of passing. (Specter voted for the measure in 2007 but has not revealed how he would decide if it comes to a vote again.) Mike Eastman, executive director of labor policy for the U.S. Chamber of Commerce in Washington, says that the bill has a better chance of being defeated rather than passed, since so many businesses are lobbying against it. "The more people know about it, the less people like it. People have started to figure out that they didn't like what this did to union elections," says Eastman. "This year, they are figuring out how bad arbitration hearings [would be]. People are becoming more wary of this bill than two years ago." EFCA detractors are also trying to block Obama's appointment of Rep. Hilda L. Solis (D-Calif.) -- a co-sponsor of the bill in 2007 -- as labor secretary, although confirmation hearings indicate her appointment is likely. If confirmed, Solis will not have a vote on the issue, but some think she will use the position to lobby in EFCA's favor. "She only has the power of the pulpit," says Martin F. Payson, senior labor partner at the White Plains, N.Y., office of Jackson Lewis. "She has the ability to get press coverage, the ability to speak out on behalf of the administration on workplace issues ... so her role is administrative cheerleader for EFCA." Payson says that the bill as currently written has a "good but not excellent" possibility of passage. While the House will almost assuredly pass the EFCA bill in its current form, detractors in the Senate will need 41 or more votes to create a filibuster, halting any action on the issue. If it comes to a vote this time around, the senators know there is a president waiting to sign it into law and plenty of lobbyists breathing down their necks, so does that mean some votes could be changed -- against EFCA? "We think there will be people who supported it before that are questioning that decision," says Eastman. Payson predicts that if some senators change their votes, it could lead to EFCA detractors finding the 41 votes they need for a filibuster, forcing more debate on the issue. That could lead to the bill being amended to include secret-ballot elections, but ensuring that such voting occurs soon after a union hands in its petition. (Unions have long complained about management delaying unionization voting.) "I believe that the unions would not like to see the abandonment of elections because that is an untenable position from a public perception point of view," says Payson. "The union would thus achieve its objective of avoiding what it claims to be management delays in elections." Another aspect of EFCA keeping employers awake at night is the clause stating that the company and union must go to arbitration if the two sides cannot reach an agreement. Payson sees a place for compromise here as well, with the possibility of the unions dropping the mandatory-arbitration portion, unless there is evidence of the company conducting bargaining in bad faith. But any concessions by unions and EFCA advocates seem unlikely at the moment. "They have no intention whatsoever of compromising," Payson says. "At this point, they have a strong majority in both houses of Congress and a president that has committed to singing EFCA if put on his desk. They are in the power seat if you will." According to a recent Washington Post editorial, however, Obama may be taking a step back from full support of the bill. "Mr. Obama signaled willingness to consider other mechanisms to address the concern that employers unfairly use the current process to intimidate workers not to join unions. And he seemed in no hurry to have Congress bring it up ... declining to state whether he wanted to see the issue debated during his first year in office," according to the Post. In the meantime, HR is stuck in the middle -- fighting the proposal as well as planning for its passage. Mike Aitken, director of government affairs at theSociety for Human Resource Management in Arlington, Va., says that SHRM has been visiting lawmakers and advocating against EFCA -- as well as training HR departments. HR should be familiarizing themselves with collective-bargaining agreements since there is a good chance they haven't dealt with the issue in years -- or ever, he says. Another way companies can defend against union organizing, says Aitken, is to become an "employer of choice." "Even in these tough economic times, they need to make sure their compensation practices and policies are what their employees need and want, and are serving their strategic business needs from a human-capital perspective," he says. "That's a prime reason why employers typically are targets for union activity ... because you have disgruntled employees." Payson -- who has been briefing HR leaders across the country on the EFCA issue -- says that HR needs to take a much more urgent tone, making it their "No. 1 priority." "Go out front right now and pre-empt the union message," he says. "That's what every HR executive should be doing right now."
January 20, 2009 Copyright 2009© LRP Publications |
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