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.
As word swirled of an announcement, Huffington Post put it this way:
If true, it represents a major blow for EFCA supporters. Specter was the one Senate Republican to vote for cloture when the bill came to the floor in 2007. And with 60 votes needed to avoid a filibuster, his defection presents a major parliamentary hurdle for the legislation’s passage.
Most of the controversy concerns the effort to replace secret ballots with cards signed in the presence of union officials. But recently the mandatory arbitration portion of the bill has gotten more attention. During a recent earnings call with investors, the general counsel of Fed Ex, Chris Richards, explained what is at stake:
The most important thing that people have really not focused on with respect to this legislation is this arbitration provision. What it would require is that when a union is elected that the employer and the union negotiate for a very short period of time, 120 days, at which point if no contract has been reached an arbitrator who has no responsibility to the employee, to the management, or to the shareowners of that company, would impose an agreement that would set the wages and benefits for those employees for a two year period.
What this means is that a person who maybe knows nothing about the industry or knows little would be setting those rates for wages and benefits. One could logically expect that in some cases they will set a rate that is too high for the company to compete effectively in its business or in some instances they may set a rate that is so low that employees cannot be attracted and the employees would not be able to find compensation that would allow them to perform the work.
The most egregious part of this is that this arbitrator would have no accountability to the shareowners of a particular business. If you look at the need for American business as a whole and not just FedEx to remain competitive one of the clearest things that is apparent from this current economic situation is that businesses must be able to control their costs and balance the needs of their employees to have a stable job opportunity with a successful business against the need for making cuts in certain areas to provide an opportunity for the business to remain profitable.
This arbitration provision is not just bad for FedEx its bad for business as a whole and I think that’s why you’re seeing a lot of people particularly Senators up in Washington starting to look at this and recognize that this bill has the potential to negatively impact the existence and creation of jobs in the US going forward.
The combination of ferocious opposition from conservatives and business groups and the attempt by Big Labor to bully Specter into supporting card check seems to have finally pushed the quirky Pennsylvania Republican over the edge. And certainly the emergence of primary challengers must have weighed heavily on his mind.
So the question remains: is card check dead? Without Specter’s support the bill is dead at least for now. And unless a Republican unexpectedly vanishes from the Senate, Big Labor is headed for a shocking and crushing blow. For conservatives, who can claim few victories in recent weeks and months, this is a much cherished win.