As the 111th Congress returned to the Capitol after its summer recess, most of the nation's focus was on the debate surrounding Health Care Reform. Practitioners in labor and employment matters have been left pondering "whatever happened to the Employee Free Choice Act?" Inquiring minds want to know.
With the inauguration of President Obama and the significant Democratic majorities in both the Senate and the House, many observers felt the EFCA would be signed into law within the first 100 days of the Obama administration. Union enthusiasts were flush with high expectations that this very union-friendly legislation would finally become a reality. But, it did not happen. The business community's dire predictions of EFCA doom and gloom has been reduced to a flurry of sound and light signifying nothing. What happened to the EFCA and what can we expect in terms of its passage in 2009?
The business community's reaction to the EFCA was swift and focused. The most unpopular provision of the proposed legislation calls for card check union certification which would effectively eliminate the current process of secret ballot elections. The business resistance has had an impact on certain moderate and conservative Democratic senators as their support for the EFCA has demonstrably eroded. Adding to the resistance, another unpopular provision of the EFCA, mandatory arbitration which would impose contract terms on employers if they failed to negotiate an initial contract within the first 120 days after certification, was also met with high levels of condemnation from the business community.
Public reaction was strong. Media attention was not favorable. The EFCA was not in good order and so its progress was stalled. As the Senate took on other important challenges, moderate senators and Washington insiders suggested some kind of compromise was needed for the EFCA to obtain the needed 60 Senate votes to become law. Although no clear compromise has been officially announced, some senators and union leaders have suggested the following are possible, if not probable:
Discard the card check certification in exchange for an expedited election which would take place within a maximum of 20 days after the filing of a union petition with the NLRB – the "Quickie Election"
Inserting a new provision granting union organizers access to the employer's property during the short preelection campaign period
Inserting a provision that would limit or eliminate the employer's ability to conduct mandatory employee meetings during the short preelection period.
It is entirely possible the EFCA may never lose its "back-burner" status due to more pressing political issues such as health care reform, cap and trade, and financial regulatory reform. There is no better evidence than listening to leading Democrat voices. As recently as late August, Senator Harry Reid, the Senate Majority Leader, indicated the Senate is too busy with other things to consider the EFCA or any compromise of the EFCA in 2009 saying "We have too many other things on our plate." Although Reid's spokespersons have attempted to downplay the impact of his off-the-cuff statement, it is apparent that the EFCA, with or without compromises, will be unable to garner the 60 votes required in the Senate any time soon.
If the EFCA is not considered by the Senate in 2009, when might it be brought back? Looking forward to the 2010 midterm elections, politicians may not be interested in courting the union vote in exchange for another promise to pass union-friendly labor reform. A recent Gallop survey found that a majority of Americans believe that unions help only workers who are union members but that unions "mostly hurt" non-union workers. Moreover, 51% of workers surveyed now say unions "mostly hurt" the economy in general. This figure is up from 36% compared to 2006, the most recent time that question was asked. As a voting block and as a political fixture to help the nation out of the current economic doldrums, unions are clearly not the force they used to be as recently as 2007- 2008. Members of the House of Representatives and the Senate facing election in 2010 may have less enthusiasm for EFCA in 2010 than demonstrated in 2009. Thus, the EFCA may not be considered again, if at all, until 2011 after the 112th Congress convenes.
One thing is certain, the unions and the Obama administration, together with the Democrat congressional leaders tied to EFCA passage, will not go away quietly. Moreover, if a compromise version of EFCA gains momentum, the dire predictions for employers will sound loudly again for the simple reason that the compromise version of the EFCA, as contemplated, still represents major labor reform which greatly aids union organizing and which will have serious consequences for employers. As one of my colleagues put it, the great EFCA nightmare may yet become a reality. Stay tuned.