Since Congress returned to work earlier this month, there have been rumors circulating that a “deal” may be in the works to reach a compromise on the Employee Free Choice Act (EFCA), H.R. 1409 and S. 560.
The EFCA legislation, which would make it faster and easier for labor unions to organize employees, has been the subject of intense Senate negotiations for much of 2009. This is because the bill currently lacks sufficient support to fend off a filibuster in the Senate.
But comments by key legislators at the AFL-CIO’s annual convention in Pittsburgh have raised new questions about the state of these negotiations.
In an address to AFL-CIO members during the convention this week, Senator Arlen Specter (D-PA) – one of the pivotal “undecided” senators on this issue – said that a compromise on EFCA had been crafted that will “meet (organized) labor’s objectives.”
However, many stakeholders, including union leaders, quickly contradicted Specter’s remarks saying that no compromise has been reached.
“There is no final deal in place,” said incoming AFL-CIO President Richard Trumka.
Regardless of which version is true, here is a brief description of the major provisions that are likely to be included in modified version of the Employee Free Choice Act:
- Organizing – While an employer’s right to call for a private ballot election may be retained, the legislation is likely to include a “quick” election requirement. This could mean that after a union files a petition, an election would have to be held within a short period time, perhaps as few as 5 - 10 days.
- Arbitration – While the mandatory arbitration provision might be dropped from the bill, a compromise could include a “final best offer” form of arbitration, in which an arbitrator would choose the entirety of either the union or employer’s final contract proposal.
- Union Access – The legislation is likely to include enhanced union access to the workplace, potentially requiring employers to allow union representatives to appear at employer-sponsored meetings on unionization, to meet with individual employees, and to have access to the employer’s e-mail systems, and other communications tools.
- Increased Penalties on Employers – The one-sided penalty structure from the original version of EFCA may not change under a compromise version, including treble damages against employers for unfair labor practices.
Other Issues Affecting EFCA:
Senator Kennedy’s Open Senate Seat
EFCA supporters still need 60 senators to vote in favor of “cloture,” which ensures that debate will be cut off (after 100 hours) and a final vote will occur on the measure. Secure 60 votes for “cloture” has become more challenging with the recent death of the Senator Edward Kennedy (D-MA), who was a strong EFCA supporter.
A special election will be held January 19, 2010, to determine who will serve out his term. However, efforts are underway in Massachusetts to change state law to allow the governor to appoint an interim senator to fill the vacation seat until the January election.
Harkin to Chair the Senate Health, Education, Labor and Pension (HELP) Committee
A consequence of Senator Kennedy’s death was the elevation of Senator Tom Harkin (D-IA) to replace Kennedy as the chair of the Senate Committee on Health, Education, Labor and Pension. Harkin is the Senate author of EFCA, and his new chairmanship may mean a renewed push to enact EFCA or another version of labor law reform.
SHRM continues to urge Members of Congress to oppose EFCA or similar legislation. SHRM remains committed to protecting employees’ and employers’ right to a private ballot election and opposed to any mandatory interest arbitration scheme.
Please visit SHRM’s “Employee Representation Toolkit” by clicking HERE.