CARD CHECK TO BE DROPPED IN EFCA COMPROMISE
Six pro-labor Senate Democrats reportedly are working on
a compromise aimed at gaining passage of the Employee Free
Choice Act, which abandons the controversial “card
check” provision.
The provision in the EFCA concerning card check (requiring
employers to recognize a union without a secret ballot election
if 50 percent of employees signed union authorization cards)
proved highly controversial from the start and gave rise
to opposing coalitions of “strange bedfellows”
(e.g. former-Senator George McGovern and the Business Roundtable
of the U.S. Chamber of Commerce). Consequently, the EFCA
stalled but organized labor continues to press for legislative
action. A coalition of moderate and liberal Democrats led
by Senator Tom Harkin of Iowa has crafted compromise legislation
that is said to contain the following elements:
• Remove the card check provision;
• Shorten the time from the filing of a union petition
to the date of election (an election reportedly would be
held five or ten days from the filing of the petition);
• Give unions access to company property for union
solicitation; and
• Bar employers from mandating employee attendance
at certain company presentations addressing union organizing.
An AFL-CIO official quoted in the New York Times on July
17, 2009 suggested that the revised legislation also will
include enhanced penalties for employer unfair labor practice
charges and some form of binding arbitration in first contracts.
The compromise legislation sounds much like the National
Labor Relations Modernization Act, a bill introduced in
the House by Representative Joe Sestak (D PA) in March 2009.
Concerned business groups deem some of these components
to be “non-starters.” The binding arbitration
provision in particular is troubling because it would authorize
a federal arbitrator to decide contract terms for the parties
if they could not agree after 120 days of collective bargaining
and mediation. The prospect of wages and benefits being
imposed by a third party is, in reality, as controversial
as card check.
The compromise legislation has not been introduced and
is unlikely to surface until after Congress recesses. No
vote is expected until September 2009 at the earliest. The
message for business is that a battle had been won but the
war is clearly not over. Concerned companies must continue
to keep the pressure on Congress not to enact compromise
legislation that will dramatically tip the balance in organized
labor’s favor.
July 20, 2009
Shawe
Rosenthal LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal
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