Card Check Fight Is In The Senate

March 25, 2009
Opponents of the Employee Free Choice Act say it is likely to pass in the House but the legislation that would simplify union organizing will face a filibuster in the Senate.

The controversial Employee Free Choice Act or Card Check bill as it is known looks like it will have an easy time in the US House of Representatives. Speaking to the International Warehouse Logistics Association (IWLA) annual conference, Tim Lynch, senior vice president, American Trucking Associations, pointed out that the bill, H.R. 1409, needs a vote of 218 to pass the House. Democrats have 256 seats, so on a partisan basis, the Democrats have a 38 vote cushion to pass it.

Lobbying efforts are continuing in the House, said Lynch, but the battle is in the Senate where the Democrats do not have a filibuster-proof majority. The Democrats have 58 seats in the Senate to the 41 Republicans, with one vacancy as the Minnesota Senate seat ostensibly won by Al Franken is decided. A filibuster may be the only way to defeat the bill, say its opponents.

One particularly onerous aspect of the Card Check legislation, say opponents,is the binding arbitration the bill would require once a majority of workers vote to organize. That simple majority needed to unionize consists of 50% of workers plus one. Once the majority is reached, the law would require a contract in 120 days or it would force binding arbitration. Lynch quipped that based on his experience negotiating contacts for motor carriers under the National Master Freight Agreement, “It takes 118 days just to decide what size the table is going to be.” But, he warned the third party logistics providers, during arbitration, you'll have a federal arbitrator who doesn't know your business deciding on your contract. The arbitrator will look at prevailing wage contracts in your area and say, here's your contract, he cautioned.

A recent salary survey conducted by Outsourced Logistics asked 3PLs, carriers and users of logistics services (manufacturers and retailers) if they were unionized. Across the board, respondents indicated over 80% of their operations were non-union.

Card check runs in tandem with the independent contractor issue, Lynch noted. Unions can't organize independent contractors, so any tightening of the definition of who is an employee could turn that non-union portion of a workforce into potential targets for organizing and, with card check in place, the process is greatly simplified. As a consequence, opponents and supporters of changes in rules governing independent contractors are applying comparable pressure on both issues.

Three years ago when the card check issue was initially raised in the House of Representatives, it had sufficient support to pass when it came out of committee after being marked up, but Lynch feels the tide has shifted a bit. Some of the moderate-to-conservative Democrats who had supported the bill in the past recognize that with a Democrat in the White House and Democrats controlling the legislature, the bill would be signed into law if it is passed. Some of those legislators now say they need to give the issue more thought. But, says Lynch, with some of those legislators on the fence, the battle won't be won in Washington, DC. Rather, it will be won at the grassroots level at home where the legislators need to see local business people offering views on the potential impact of such a law on their businesses.

Discussions in the hallways brought up additional issues that troubled attendees. Some were already hearing about concerns among their workers over intimidation by organizers if the card check bill becomes law and the vote to organize or not is no longer by secret ballot.

Current rules allow for a similar process to card check to call for an election, but a positive result in that case only leads to a secret-ballot certification vote, it does not unionize the workforce or require a contract or binding arbitration within 120 days, as the legislation in Congress would do. Just as some legislators have expressed a desire to consider the issue more closely now that they are assured passage would lead to an Obama signature, workers who might agree openly to hold an election where they could anonymously vote against union representation are expressing some discomfort with a public vote that might label them anti-union.

This raises issues for companies that might be targets of the union organizers. Some of these issues open discussions of company policy and employee policy manuals. An obvious concern is harassment and issues surrounding a “hostile work environment.” Clear policies, evenly applied, are necessary in cases of workplace harassment or a company could face unfair labor practices charges. Though the most publicized cases seem to be sexual harassment, the law defines a hostile environment broadly and applies rules to sexual, ethnic, religious or other matters. Setting down those policies and ensuring all employees understand the policies and their recourse to get resolution if they feel they are victims of harassment or a hostile work environment can help ensure against intimidation and a series of unfair labor practice law suits.

Another area that came up anecdotally is company e-mail. As one attendee described it, if you let Sally send out an e-mail soliciting orders for her daughter's Girl Scout cookies you will have a difficult time stopping union organizers from using the same method to seek support or send out cards for an organizing vote. Again, said the member, the issue is setting a policy, communicating it, and applying it evenly.

The Employee Free Choice Act has been introduced in both the US House and the Senate and has been referred to committee in both cases. The House bill is in the Committee for Education and Labor. The Senate version (S. 560) was read twice and referred to the Committee on Health, Education, Labor, and Pensions.

The House Committee for Education and Labor is chaired by George Miller (D-CA) and includes Democrat members: Dale E. Kildee (MI), Donald M. Payne (NJ), Robert E. Andrews (NJ) Robert C. Scott (VA), Lynn C. Woolsey (CA), Rubén Hinojosa (TX), Carolyn McCarthy (NY), John F. Tierney (MA), Dennis J. Kucinich (OH), David Wu (OR), Rush D. Holt (NJ), Susan A. Davis (CA), Raúl M. Grijalva (AZ), Timothy H. Bishop (NY), Joe Sestak (PA), Dave Loebsack (IA), Mazie Hirono (HI), Jason Altmire (PA), Phil Hare (IL), Yvette Clarke (NY), Joe Courtney (CT), Carol Shea-Porter (NH), Marcia Fudge (OH), Jared Polis (CO), Paul Tonko (NY), Pedro Pierluisi (PR), Gregorio Kilili Camacho Sablan (Northern Mariana Islands), and Dina Titus (NV). Republican members include: Howard P. "Buck" McKeon, Ranking Member (CA), Thomas E. Petri (WI), Peter Hoekstra (MI), Michael N. Castle (DE), Mark E. Souder (IN), Vernon J. Ehlers (MI), Judy Biggert (IL), Todd Russell Platts (PA), Joe Wilson (SC), John Kline (MN), Cathy McMorris Rodgers (WA), Tom Price (GA), Rob Bishop (UT), Brett Guthrie (KY), Bill Cassidy (LA), Tom McClintock (CA), Duncan D. Hunter (CA), Phil Roe (TN) and Glenn ‘GT’ Thompson (PA).

The Senate Committee on Health, Education, Labor and Pensions is chiared by Edward Kennedy (MA) and includes Democrat members (by rank): Christopher Dodd (CT), Tom Harkin (IA), Barbara A. Mikulski (MD), Jeff Bingaman (NM), Patty Murray (WA), Jack Reed (RI), Bernard Sanders (I) (VT), Sherrod Brown (OH), Robert P. Casey, Jr. (PA), Kay Hagan (NC) and Jeff Merkley (OR). Republican members (by rank) are: Michael B. Enzi (WY), Judd Gregg (NH), Lamar Alexander (TN), Richard Burr (NC), Johnny Isakson (GA), John McCain (AZ), Orrin G. Hatch (UT), Lisa Murkowski (AK), Tom Coburn, M.D. (OK) and Pat Roberts (KS).

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