Employee Free Choice Act
March 1, 2009
Card Check Bill Bad for Employers but Alternative Proposal Falls Short
Few pieces of legislation in recent memory have generated the level of intensity among both supporters and detractors as the Employee Free Choice Act ("EFCA" or "the Act") currently being debated by the U.S. Congress. The EFCA, while ostensibly designed to create a more level playing field between labor and management, appears to most business leaders and pro-business elected officials to shift the balance of power in labor negotiations to unions, depriving workers and management alike from long-standing procedural protections. Under the EFCA, a union would automatically be certified as the official bargaining unit for a group of employees if it obtained pro-union cards from a majority of the employees. This "card check" process would strip away the right of the employer to demand the secret-ballot election provided under current law. Business groups have thus united against the EFCA, while labor unions consider the Act their most important legislative priority and are looking for payback for their substantial financial support in recent elections of pro-labor politicians, including President Obama, who is an outspoken supporter of the Act.
Despite the sweeping push by organized labor to enact the EFCA, passage of the Act is far from certain. Not only are business groups lining up against the Act’s passage, but Senator Arlen Specter, a Republican who often sides with Senate Democrats on legislation opposed by other Senate Republicans, announced from the Senate floor on Tuesday, March 24, 2009, that he will not support the Act. Prior to Senator Specter's announcement, many thought he would provide a tie-breaking vote in support of the Act in the Senate, but observers now note that, without Specter’s vote, Senate Democrats can hope for only 59 of the 60 votes needed for the Act to clear the Senate’s procedural rules. Some moderate Democrats, such as Arkansas Senators Blanche Lincoln and Mark Pryor and Virginia Senator Mark Warner, have also expressed skepticism regarding the wisdom of passing the card check measure, particularly in light of the already beleaguered state of the U.S. economy.
Nonetheless, business groups are concerned enough about the Act that three major U.S. retailers recently proposed an alternative bill. Starbucks Corp., Costco Wholesale Corp., and Whole Foods Market, Inc., after forming a committee they call the "Committee for A Level Playing Field," pushed this week for alternative legislation that would drop the two provisions of the EFCA that have drawn the most ire from the business community: the card check process without a secret ballot and the automatic appointment of an arbitrator to establish contract terms if union and management officials cannot agree on such terms within 120 days. Despite these changes, the alternative bill may still be seen as tilting the scales in favor of unionization because it would set a fixed time within which union elections must occur, increase penalties for companies that fail to participate in collective bargaining, and guarantee unions the same access to employees as that available to management. For many business groups, therefore, the alternative proposal falls short of creating a true "level playing field," the goal expressed in the name of the committee advancing it.
Ultimately, resistance to the EFCA is widespread and well-funded, with the U.S. Chamber of Commerce alone promising to spend up to $20 million to defeat the Act and the National Federation of Independent Business adamantly opposed to its passage. Thus, while President Obama has an unprecedented level of popular support and seems inclined to sign the Act if it appears on his desk, the reality of a faltering U.S. economy, combined with the recent defection of Senator Specter and the wavering by moderate Senate Democrats, may signal that any version of the Act that eliminates secret-ballot elections in favor of a card check process for union elections may never see the light of day. In the meantime, however, the "alternative" plan is not the answer.