The inaptly named Employee Free Choice Act has not opened to rave reviews. With large Democratic majorities in both houses and a sympathetic pro-Big Labor Democrat in the White House, it appeared that the time was finally right for unions to claim their prizes: stripping workers of the right to a secret ballot and imposing mandatory arbitration.
Then today Sen. Arlen Specter, whose vote would be needed to cut off the anticipated filibuster in the Senate, uncorked what appeared to be a knockout blow to Big Labor. He finally signaled his opposition on the floor of the Senate after weeks of speculation and the emergence of primary challengers. He announced that he would not support cloture, although he left the door open for more modest amendments to federal labor law.
I have sought recognition to state my position on a bill known as the Employee Free Choice Act, also known as card check. My vote on this bill is very difficult for many reasons. First, on the merits, it is a close call and has been the most heavily lobbied issue I can recall. Second, it is a very emotional issue with Labor looking to this legislation to reverse the steep decline in union membership and business expressing great concern about added costs which would drive more companies out of business or overseas. Perhaps, most of all, it is very hard to disappoint many friends who have supported me over the years, on either side, who are urging me to vote their way.
In voting for cloture — that, is to cut off debate — in June 2007, I emphasized in my floor statement and in a law review article that I was not supporting the bill on the merits, but only to take up the issue of labor law reform. Hearings had shown that the NLRB was dysfunctional and badly politicized. When Republicans controlled the Board, the decisions were for business. With Democrats in control, the decisions were for labor. Some cases took as long as eleven years to decide. The remedies were ineffective.
Regrettably, there has been widespread intimidation on both sides. Testimony shows union officials visit workers’ homes with strong-arm tactics and refuse to leave until cards are signed. Similarly, employees have complained about being captives in employers’ meetings with threats of being fired and other strong-arm tactics.
On the merits, the issue which has emerged at the top of the list for me is the elimination of the secret ballot which is the cornerstone of how contests are decided in a democratic society. The bill’s requirement for compulsory arbitration if an agreement is not reached within 120 days may subject the employer to a deal he or she cannot live with. Such arbitration runs contrary to the basic tenet of the Wagner Act for collective bargaining which makes the employer liable only for a deal he or she agrees to. The arbitration provision could be substantially improved by the last best offer procedure which would limit the arbitrator’s discretion and prompt the parties to move to more reasonable positions.
The problems of the recession make this a particularly bad time to enact Employees Free Choice legislation. Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give Labor sufficient bargaining power through amendments to the NLRA, then I would be willing to reconsider Employees’ Free Choice legislation when the economy returns to normalcy.
I am announcing my decision now because I have consulted with a very large number of interested parties on both sides and I have made up my mind. Knowing that I will not support cloture on this bill, Senators may choose to move on and amend the NRLA as I have suggested or otherwise. This announcement should end the rumor mill that I have made some deal for my political advantage. I have not traded my vote in the past and I would not do so now.