Senator Specter Announces Plan to Revive Dying EFCA

In a September 15, 2009, speech at the AFL-CIO annual convention, Senator Arlen Specter (D-PA) declared that a compromised version of the Employee Free Choice Act (EFCA) will pass this year. Senator Specter went on to detail a revised version of the bill he has been drafting along with five other members of the Senate. Senator Specter's statements come in the wake of an August 27, 2009, Las Vegas Chamber of Commerce meeting where Senate Majority Leader Harry Reid (D-NV) reportedly announced that the Senate's calendar for this year is too full to consider EFCA until 2010.

Senator Specter's proposal modifies and/or eliminates some provisions of EFCA, most importantly the card check provision, and leaves others unchanged. Specifically, Senator Specter's proposal:

• Eliminates the card check provision, which would have done away with secret-ballot elections and allowed workers to organize after a majority of the bargaining unit signed pro-union cards. It replaces this provision with a proposal to reduce the time period between the announcement that unions have enough votes to hold an election and the actual election. There is some indication that this period will be reduced to seven days or less.
• Guarantees organizers access to workers if employers hold mandatory anti-union meetings on company time.
• Maintains the EFCA provision requiring employers who engage in certain types of unlawful conduct to pay penalties equal to three times back pay.
• Clarifies that when employers and unions fail to agree on a contract within the specified time frame, they will proceed to "last best offer arbitration," also called "baseball arbitration." Under "last best offer arbitration," both sides would be required to make their best offer and the arbitrator would then adopt either the union's offer or the employer's offer. Whether this is a viable option for collective bargaining agreements and their many provisions remains unclear.

Senator Specter further indicated that he believes he has the necessary 60 votes to break a Republican filibuster. However, the vacancies created by Senator Kennedy's death and Senator Byrd's ongoing illness likely mean that Senator Specter will not have the 60 votes needed until some later date. Regardless, those who oppose EFCA remain skeptical that Senator Specter would ever be able to secure the 60 votes needed and contend that moderate Democrats are unlikely to support the legislation. Even the incoming President of the AFL-CIO, Rich Trumka, was less optimistic, saying that the provisions of EFCA have been "muddied up" and no deal has been reached.

Senator Specter's announcement at the AFL-CIO convention is odd in light of Senator Reid's recent statements regarding EFCA's status. In light of Senator Specter's fecklessness on EFCA, employers should take his announcement with "a grain of salt." That being said, however, employers will be well served if they work now to plan for an EFCA compromise as organized labor is obviously not giving up the fight for congressional labor reform. Baker & Daniels' labor and employment team has been working with clients across the United States to develop strategies to prepare employers so that they can remain non-union in what continues to be a challenging labor relations environment.