Compromise on Card Check Bill Not Enough

Opponents may need to find a new nickname for the Employee Free Choice Act (H.R. 1409; S. 560). A report in the New York Times indicated Senate committee members working on the bill had proposed removing the controversial “card check” provision that would have simplified the process of collecting signatures to organize a non-union company or operation. Reactions in the business community point to portions of the bill they find equally if not more onerous.

The bill was commonly referred to as the Card Check legislation because of a provision that would allow union organizers to collect signatures from workers directly without a secret-ballot election. Further, the provision set a threshold of 50% plus one as the level of support needed to organize. Many workers and opponents to the card-check provision argued the lack of a secret ballot would lead to union intimidation of workers. The unions countered that current rules allow companies to use strong tactics to influence workers to oppose unions.

The House bill and its Senate companion version have been referred to committees in the respective legislative bodies where they have remained since March 2009. The report of a possible compromise was greeted with a flurry of reactions.

Opponents barely breathed a sigh of relief that the compromise would set a 30% threshold on worker signatures which would in turn allow the union to petition the National Labor Relations Board for a secret-ballot election. Though this approach is not the automatic approval of the card check option, the compromise reportedly does not eliminate the requirement for mandatory arbitration if the union and company do not reach a contract agreement within 120 days. (The law the bill would replace requires only that both parties continue to bargain in good faith.)

Another concern of business owners is the fact the EFCA would impose significant penalties on employers for unfair labor practices, but it does not treat unions in the same manner.

Joel Anderson, president and CEO of the International Warehouse Logistics Association (IWLA) said, “The only thing being floated as being dropped from the bill is the secret ballot. The bill still keeps binding interest arbitration, which is a deep and broad line in the sand for employers. This provision would have a federal mediator decide on the first two-year contract for the employees and is still in the bill.”

An IWLA member whose operations are already unionized called the binding arbitration and other provisions still in the bill “toxic issues” and reiterated the concern over the binding arbitration which would set wages in the first contract.

IWLA's Washington representative Pat O'Connor dug a little deeper into the election issue pointing out that the bill calls for elections to be held within 10 days, not the present 45 days. He also noted, in place of the open card check, ballots would be mailed to workers who would return a post card ballot. Taken together, these elements compress the election process and trigger the contract negotiation and the 120-day deadline for an agreement.

O'Connor, like others opposing the bill, was concerned that the “last best offer” arbitration was still in place. If the parties do not reach an agreement in the specified time, he said, the federal arbitrator would choose the “last best offer” reached by a comparable company and union in the same geographical area.

Employers and groups like the Coalition for a Democratic Workplace and the US Chamber of Commerce are watching but not waiting for further action. As O'Connor concludes, “There is not compromise that is acceptable.” He does not expect to see the legislative language of the compromise bill until “close to the last minute, to give us the least amount of time to mobilize.”

Robert Voltmann, president and CEO of the Transportation Intermediaries Association (TIA) said his group has not been actively lobbying on the issue but it has followed the efforts of the American Trucking Associations and the US Chamber of Commerce. He didn't expect action before the August Congressional recess, but he said, “I think they are going to get an ear full during recess and come back less willing to enact sweeping new government initiatives.”

It appears that currently the last-best-hope for opponents is that the bill retains so many unacceptable provisions that its previous momentum grinds down to nothing. The concern remains that with 60 seats in the Senate, the Democrats and Independents who typically follow the Democratic lead, at least theoretically, can overcome a filibuster and move legislation on a partisan basis, but there appear to be hold outs on both sides of the aisle, making any prediction on the outcome difficult at best. And that's keeping the lobbyists busy on Capitol Hill and trade associations continuing to promote action by members.

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