Two Tracks For EFCA In 2010

Tuesday, December 1, 2009 - 01:00

By Glenn Spencer

Glenn Spencer is the Executive Director, Workforce Freedom Initiative, U.S. Chamber of Commerce.

Despite repeated statements to the contrary, it is highly likely that 2009 will have come and gone without passage of organized labor's top priority:the so-called Employee Free Choice Act (EFCA).However, no one with an interest in this legislation should let down his guard.While health care currently dominates the issues landscape, union leaders have made it clear that once health care moves off center stage, EFCA will come roaring back.On November 16, for example, Roll Call quoted AFL-CIO president Richard Trumka as saying:"We're committed to getting health care doneand then we'll get to the Employee Free Choice ActI feel very confident that in the wake of health care, you'll see that we'll get the Employee Free Choice Act done."On November 6, Andy Stern of the Service Employees International Union (SEIU) added:"I think after we get through this health care situationwe are going to see a change in our labor laws."

These types of premature announcements of victory are nothing new - such assurances have been commonplace throughout 2009.But what makes it more likely than not that EFCA will see some type of action early next year is increasing anxiety within the union movement that time is running out.If EFCA proved too hot to handle in the first session of the 111th Congress, it may be even less palatable in the middle of an election year.And if recent polling (not to mention off-year election results) is any indication, the Democrats' 60 seat lock on the Senate may come undone in November 2010.Adverse results in that election, from the union perspective, will push EFCA not just to the back burner, but possibly off the stove completely.

If the time for pro-EFCA forces to push is early next year, a key question is what product will be the focus of that push.The original version of the bill (S. 560, H.R. 1409), with its de facto elimination of secret ballots and forced government arbitration, looks increasingly unlikely to garner 60 votes.And the group of seven senators attempting to craft an alternative bill has yet to devise the magic formula that brings enough senators on board and still meets the unions' objectives.Numerous proposals have been floated, but thus far, unions have made it clear that these fall short of their expectations.

Where those negotiations ultimately lead, if anywhere, is still unclear.This much, however, is certain.At some point next year, union leaders in Washington will simply demand that Senate Majority Leader Harry Reid give them a vote.And despite the howls of protest that will erupt from within his own caucus, he is likely to comply, even if it's a vote he thinks he may lose.

But unions aren't just waiting around for the Senate to act."Plan B" for enactment of EFCA by other means is already underway.And Plan B has a name:Craig Becker.

Becker is currently the Associate General Counsel for the SEIU.He has also been nominated to fill one of the vacancies on the National Labor Relations Board (NLRB).The NLRB is entrusted with overseeing union certifications and investigating unfair labor practice charges, and Becker has some very "unique" views about how labor law should be interpreted and enforced.

For example, Becker has written that "employers should be stripped of any legal cognizable interest in their employees' election of representatives."This radical view would even extend to prohibiting employers from alerting the NLRB to illegal campaign conduct.In the same law review article quoted above, Becker wrote that "employers should have no right to raise questions concerning voter eligibility or campaign conduct."Taking such views one step further, Becker believes that employers shouldn't even be heard when it comes to most NLRB cases, writing:"employers should have no right to be heard in either a representation case or an unfair labor practices case."

Becker has also indicated his support for barring employers from playing a role in unit determinations, removing employer observers from polling sites, preventing employers from challenging NLRB rulings in federal court and granting union organizers access to an employers' private property.All of these positions seem at odds with past board precedents, court decisions and decades of labor law.

Becker's opinion is that many of these dramatic steps could be taken regardless of whether or not Congress amends the National Labor Relations Act.For example, Becker has written that new restrictions on employers' activities during elections "could be achieved with almost no alteration of the statutory framework."It is hardly a stretch to suggest that this same view might hold with regard to the provisions of EFCA.

Becker's nomination has cleared the Senate Health, Education, Labor and Pensions committee, but is the subject of a hold that will prevent a full confirmation vote - for now.Much like what an alternative version of EFCA could look like, how long the nomination stays in legislative Purgatory is an open question.But it's a safe bet to say that next year will be a very interesting one in the field of labor law.

Please email the author at gspencer@uschamber.comwith questions about this article.