Sen. Arlen Specter, R-Pa., inflicted what could be a fatal blow to the Employee Free Choice Act (EFCA) by declaring today that he would not side with Democrats and end any potential filibuster over the bitterly divisive issue.
Specter's vote was regarded as vital because the legislation's fate appears to hinge on whether proponents can muster the 60 votes needed to overcome a filibuster in the Senate on the issue. The House has different rules and, with its solid Democratic majority, was expected to approve the bill.
Assuming Al Franken, a Democrat, finally wins the contested seat for Minnesota's junior senator, Democrats would have 59 votes in the Senate and thus would need just one Republican vote to stop any attempt to filibuster the bill to death. Specter was considered the most likely candidate because he voted for cloture--that is, to cut off debate--when the issue came up in 2007.
However, Specter said today that this time, he won't support cloture.
"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 text of Specter's full statement on the Senate floor said. "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.
"In seeking more union membership and negotiating leverage, labor has a valid point that they have suffered greatly from outsourcing of jobs to foreign countries and losses in pension and health benefits," Specter continued. "President Obama has pressed Labor's argument that the middle class needs to be strengthened through more power to unions in their negotiations with business. The better way to expand labor's clout in collective bargaining is through amendments to the [National Labor Relations Act] rather than on eliminating the secret ballot and mandatory arbitration."
The legislation under consideration--H.R. 1409 and S. 560--would require that an employer recognize a union's bid to represent workers if a sufficient number of employees check off a card indicating they want union representation. As a result, it's also referred to as the "card-check bill." Currently, virtually all organizing campaigns end up being settled by a secret ballot of employees.
EFCA's backers say requiring a secret ballot is unfair because employers often intimidate workers during the campaign. Opponents say EFCA is un-American in that it will deny workers the right to a secret ballot. They also say the bill will cost jobs and isn't supported by the majority of Americans.
Until Specter spoke today, the major news involving EFCA regarded an attempt by Starbucks, Costco and Whole Foods to promote a "third way" on the bill. They proposed letting management keep the right to demand secret ballot elections and not requiring them to go through binding arbitration. At the same time, the companies would expand penalties for interfering with a vote, allow unions access to employees during nonworking hours and mandates a fixed time for elections so companies can't delay the process.
EFCA's fans and enemies reacted with equal hostility to the idea.
"This proposal is unacceptable," declared a statement issued by Reps. George Miller, D-Calif. and Rob Andrews, D-N.J. and Sen. Tom Harkin, D-Iowa. "It was written by CEOs for CEOs. It is not a serious attempt at labor law reform because it fails to fundamentally address key problems that currently prevent workers from being able to join together and bargain for a better life.
"This proposal maintains the status quo by denying workers a real say in the workplace," the statement continued. "It denies workers the ability to choose majority sign-up, the one method for organizing proven to reduce coercion and pressure from all sides on workers. It rejects a tried and proven method for ensuring good faith bargaining, denying workers a fair chance to gain the same kind of enforceable contracts that CEOs always take for themselves."
On the other side, the Coalition for a Democratic Workplace, which includes as members the National Lumber and Building Material Dealers Association as well as the NAHB, declared the idea "void any of the kind of detail that would merit taking it seriously."
"Until EFCA is defeated and removed from this process, neither this proposal nor any other can be taken seriously," the group declared. "CDW will continue to stand up for hard-working Americans and small business owners by opposing EFCA in its entirety. "
NLBMDA, in a letter distributed last week by association president Michael O'Brien, made clear its dislike of the bill when O'Brien declared: "All lumber and building material dealers need to be very concerned about this dangerous piece of legislation and be prepared to take action. ... Even if your members of Congress have declared their support for the bill, it is still important to put them on notice that this legislation is a job killer and will hinder our housing recovery."
The bills are now in committees and have yet to come up for hearings. The House approved a similar measure last year but it died in the Senate.
CDW is pushing to keep the bill from ever coming up for a vote in the full Senate. On March 4, it asked EFCA's opponents to urge their senators to oppose every vote regarding EFCA, procedural and otherwise. "It is not enough to say 'I'm against the bill but I'll vote for cloture'," the coalition said in an e-mail to its members. "Cloture may seem like inside baseball, but this isn't complicated to message to our members. A vote for cloture is a vote for EFCA."
President Obama supported EFCA last year when he was a sneator, and his administration is expected to favor the bill again. However, there is much speculation in Washington that Obama will give EFCA lower priority than his efforts to stimulate the economy and reform health care.
Even if EFCA gets through Congress, the battle might not end there. The Orlando Business Journalreports that Florida House Majority Leader Adam Hasner, R-Delray Beach, is seeking a state constitutional amendment guaranteeing the right to a secret ballot for all types of elections, including those forming a union. The resolution last week passed one committee, but must pass both the full state House and Senate before it can be presented to voters for approval, the newspaper said.