Is EFCA's Time Now?

Is EFCA's Time Now?

With the Obama administration focused on the economy and health care reform, there's been little movement on the Employee Free Choice Act. Still, unions see the next three years as their window of opportunity.

The election of President Barack Obama was a victory for unions. And it was a victory that was made possible -- in no small part -- by the financial support and voter mobilization efforts of unions.

Union support of a Democratic candidate for president is nothing new, of course. Philip Dine, a Washington, D.C.-based journalist and author of "State of the Unions: How Labor Can Strengthen the Middle Class, Improve Our Economy, and Regain Political Influence," points out that the labor movement and Democrats have been allied philosophically since the era of FDR and the New Deal.

Still, the historic election of Obama gave rise to a new level of optimism and expectations among the labor movement, which viewed the confluence of a Democratic president, a Democratic congress and anti-Bush backlash as its window of opportunity for labor reform -- particularly passage of the Employee Free Choice Act (EFCA).

"In October of 2008, if someone would've said to us, Look, you can get 58, 59 Democrats in the U.S. Senate who are on the record in one way or another supporting the Employee Free Choice Act, and [Barack] Obama -- who's a co-sponsor of the bill -- as president, and Joe Biden -- a co-sponsor of the bill -- as vice president,' we'll just do that deal now," says Tim Waters, director of rapid response for the United Steelworkers (USW), referring to union optimism toward the prospects of EFCA.

While the election of Obama ushered in what Dine describes as "arguably the most pro-labor administration since LBJ," other more pressing priorities -- such as the economy and health care reform -- have pushed EFCA to the back burner.

"We're the closest to labor law reform that we've been in 40 or 50 years," asserts the United Steelworkers' Tim Waters (pictured above).

"The attempt to get a health care bill sort of sucked all the oxygen out of the room," asserts David Zonderman, a labor history professor at North Carolina State University. "I don't think anyone would disagree -- whether you're in favor of or against [health care reform] -- that it has taken up a phenomenal amount of legislative time."

Even so, "we've still seen a number of big changes" in labor policy, asserts Reggie Belcher, a partner with the law firm of Turner, Padget, Graham & Laney PA and co-chair of the labor subcommittee for DRI, a Chicago-based organization of defense lawyers.

There was a flurry of activity early on, starting with Obama's first piece of legislation as president: the Lilly Ledbetter Fair Pay Act. Signed into law on Jan. 29, 2009, the act reverses a 2007 Supreme Court decision by restarting the statute of limitations for unlawful pay discrimination claims each time an employee receives a discriminatory paycheck.

One day later, Obama issued three executive orders rescinding Bush administration orders on labor issues. One of those orders, titled "Notification of Employee Rights Under Federal Labor Laws," repeals a Bush order stating that government contracts and subcontracts must include a clause requiring government contractors and subcontractors to post notices informing their employees that they have the right to refuse to join a union. The Obama order also requires government contractors to post notices informing employees of their right to organize under the National Labor Relations Act.

Says Belcher: "That was the starting point that things were going to be a lot different."

According to Belcher, another "radical departure from the Bush administration" is the "ramping up of funding and staffing" in the budgets for OSHA, the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs and other federal agencies responsible for employment and labor issues.

Even so, the most significant labor policy changes of the Obama administration might lie ahead, especially if EFCA sees the light of day. In the midst of a fragile economic recovery and a congressional election year, that's a big "if."

"If it is passed, I think the Obama administration could look back and say, Yes, we were able to move through the most significant change in American labor law probably since the Taft-Hartley Act of 1947,'" Zonderman says.

EFCA: Dead or Alive?

EFCA proposes three major changes to the National Labor Relations Act. EFCA would create a second method for workers to choose a union -- the now-infamous "card-check" provision -- and impose tougher penalties against employers that violate laws on union organizing and negotiating. It also would mandate binding interest arbitration if an employer and a union cannot reach an agreement on a first contract within 120 days of good-faith bargaining.

Originally introduced in 2003, EFCA passed in the House in March 2007 but died in the Senate later that year. Reintroduced in the House and Senate in March 2009, President Obama has promised to sign EFCA into law if given the chance. Even with the election of Republican Scott Brown foiling the Democrats' filibuster-proof "supermajority" in the Senate, USW's Waters says the union movement is optimistic about EFCA's fortunes.

"It's fair to say that some people have been frustrated and discouraged, but these are all the ups and downs," Waters says. "We've been fighting for this thing going on eight years now. There are always hurdles. But nothing this worthwhile for workers was ever that easy."

It won't be easy. EFCA is a polarizing piece of legislation, and groups such as the U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) vehemently oppose it because of the dramatic impact they believe it would have on the business community.

"As currently written, it would be devastating," says D. Albert Brannen, a partner with the Atlanta-based national labor and employment law firm Fisher & Phillips LLP. "Particularly in the South, where we have fewer unions, and employers therefore rarely talk about unions in the workplace."

Of any proposed or enacted labor policy on Obama's agenda, EFCA by far is the biggest concern for the National Association of Manufacturers, according to Keith Smith, NAM's director of employment and labor policy. Smith points to an economic analysis performed by LECG that concludes that the increase in union membership spurred by EFCA would result in the loss of 600,000 American jobs in the first year after its enactment.

"Our concerns with that particular bill are because of the economic consequences that come with it," Smith says. "We're not just looking at the card-check aspect of the legislation, but also the binding interest arbitration -- that's something that manufacturers have the largest concern with, because it opens the door for government control of wages, benefits and work rules."

Opposition from the business community aside, the upcoming congressional races probably won't help EFCA's prospects.

"Typically in an election year, landmark legislation does not get passed, because the congressmen and women are more concerned about holding seats than they are necessarily about putting their reputations on the line over controversial legislation," DRI's Belcher says. "And EFCA is going to be controversial."

If the bill sees the light of day, it likely will be in a "watered-down form" that, for example, eliminates the card-check provision but shortens the current 42-day time period for secret-ballot elections to take place, Belcher predicts.

"That would be one way EFCA could be changed while still making union organizing easier," Belcher says. "And I think that is one of the goals of the Obama administration."

Smith emphasizes that NAM opposes even a watered-down version of EFCA.

"EFCA in any form would be a proven jobs killer," Smith asserts. "No element of that legislation would be able to restore our economic competitiveness."

Waters, who works closely with AFL-CIO in the unions' efforts to mobilize support for EFCA, acknowledges that the unions have a fight on their hands. Even if every Senate Democrat supports the bill, finding one Republican to support it likely will be a monumental challenge.

However, Waters insists EFCA isn't dead, adding that the unions likely will press lawmakers to vote on the bill before the November elections.

"We're very, very close," Waters says. "We're the closest to labor law reform that we've been in 40 or 50 years. We are right on the verge of this. There's just no way we're going to walk away now -- that is not going to happen."

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