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Union card check: The coming storm

May 1, 2009
by Bob Gatty
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Bob Gatty

Bob Gatty


While organizations representing long-term care services are working hard to convince Congress to include support for long-term care in healthcare reform legislation, there is another issue they see as a serious threat to continued financial viability: the

Employee Free Choice Act (EFCA).

That legislation, a priority of organized labor and previously supported by President Obama, both as a senator and during his campaign for the White House, would allow workers in a non-union workplace to organize simply by checking a card rather than holding an election, as is currently the case.

Business groups, led by the U.S. Chamber of Commerce and the National Association of Manufacturers, have mounted a massive campaign against the measure, which they have dubbed the “Employee Forced Choice Act,” now arguing that it would result in a loss of jobs at the very time that the federal government is investing billions in programs to help increase jobs, reduce unemployment, and stimulate the sagging economy.

The American Health Care Association and the National Center for Assisted Living (AHCA/NCAL) announced their opposition to the proposal in March, contending that passage would not only eliminate the accepted practice and protocol of allowing individual employees the right to express their free choice via a secret ballot, but would also force arbitration and strip employees of their rights to dictate their own working environments. “This legislation is wrong on policy, wrong on principle, and presents a clear and present danger to every working American who wants to exercise free choice in joining a union,” says Bruce Yarwood, president and CEO of AHCA. “The card check-off system promoted by the bill falls far short in protecting the rights of employees.”

NCAL Executive Director Dave Kyllo says the bill would eliminate the voting privacy of employees since the card check process does not provide privacy protections-an argument that has been emphasized by the business coalition that has been organized against the measure. “Under this bill, as soon as a majority of employees sign authorization cards, in lieu of a secret ballot, the union would immediately be certified and can begin negotiations on a contract,” Kyllo says, adding that it “may promote an environment of employee harassment and intimidation by union organizers.”

The opposition by business groups to EFCA has been vociferous, and they have apparently succeeded in creating an atmosphere on Capitol Hill that appears to make it difficult for supporters to generate the 61 votes needed in the Senate to break a filibuster and bring the bill to a vote. In March, Sen. Arlen Specter (R-Pa.) announced that he would vote against cloture, thus becoming the 61st senator to take such a stand and depriving the Democratic majority of an opportunity to pass the measure despite a filibuster. He said that the current condition of the economy makes “this a particularly bad time to enact employee's choice legislation.”

The controversial bill was placed in even deeper trouble in early April after moderate Arkansas Democrat Sen. Blanche Lincoln said she would oppose it, saying she “cannot support and will not support moving it forward in its current form.” Lincoln faces reelection in 2010 and Wal-Mart, a leading opponent of the bill, is one of Arkansas' largest employers. The measure would have significant consequences for Wal-Mart and other such stores, such as Home Depot, that are not unionized.

Lincoln's statement apparently prompted labor groups to show a willingness to compromise on the bill. “A bill is introduced and then Congress works through the process of committees, amendments, and debates and 99 out of 100 times the final bill is different from when it started,” says Eddie Vale, an AFL-CIO spokesman, putting the union's “best face” on the development. “We are confident that major labor law reform is going to pass in 2009.”

Adds Joel Goldstein, a spokesman for the pro-labor American Rights at Work, “We have to let the legislative process play out; the bill has just been introduced. There are other proposals that have come up. We are fully committed to having those conversations with people who are committed to fixing the broken system.”

However, business groups say they will not consider labor law reform while EFCA is still under consideration.

“As long as unions are out there pushing hard for it, we want to get it off the table,” said Randy Johnson, vice president for labor at the U.S. Chamber of Commerce.

Specter has said he is interested in more general reform of the National Labor Relations Act and is already using his opposition to EFCA in his campaign for reelection. “I was able to stem the tide on card check,” he told MSNBC's Morning Joe program in early April.

Democrats, meanwhile, argue that the recession should not be a reason not to pass EFCA. In March, Sen. Tom Harkin (D-Iowa) pointed out that the Wagner Act, which promoted unionization, was passed in 1935 when unemployment was in the 20% range. “So tell me again why we can't do this in a recession,” he said. “This is exactly the time we should be insisting on a fairer playing field for people to organize themselves.”

But the timing raises another question: Will EFCA get in the way of healthcare reform, which will require bipartisan support to reach President Obama's desk in the Oval Office? Commented Sen. Michael Bennet (D-Colo.) during an Easter recess meeting with constituents in his home state: “Temperatures are running high on both sides of this. We need to make sure that no matter how this turns out…we've got all hands on deck working on healthcare reform because this is the year to get that done.”

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