After stalling in June 2007, the Employee Free Choice Act (EFCA) might have gained new traction on April 2, 2008, when the Senate Appropriations Subcommittee on Labor, Health and Human Services and Education held a hearing to examine the fairness of union elections in the workplace. The legislation would amend the National Labor Relations Act (NLRA) to change the way workers choose how to become part of a union. The proposed measure would end secret-ballot workplace elections and would allow union representation to be decided through a “card-check process.”Although the hearing was not scheduled to be a direct examination of the Senate version of the EFCA (S. 1041), it became clear from the outset that the hearing would focus on the legislation. During his opening remarks, Sen. Tom Harkin, D-Iowa, chair of the subcommittee, mentioned the EFCA and stated that he was a “strong supporter” of the measure.
“In order to rebuild the economic security for the middle class of America, we have to rebuild strong and vibrant unions,” Harkin said. “And to build stronger unions, we must reduce the unfair barriers to organizing.”
The House of Representatives passed its version of the bill (H.R. 800) in March 2007. A series of cloture votes on the measure held by the Senate three months later failed to curtail debate and advance the legislation—in effect, tabling the bill.
Harkin decided to schedule a subcommittee hearing after receiving a request from the subcommittee’s ranking minority member, Sen. Arlen Specter, R-Pa. Specter stated that he made the request out of his concern that the processes for approving union representation were no longer working and were unfair.
The panel of witnesses testifying before the subcommittee included the two members of the National Labor Relations Board (NLRB). By law, the NLRB is supposed to have five members; however, three positions on the board are vacant—a situation noted by Specter in his opening statement.
“In reviewing the work of the NLRB, I am concerned about a number of factors, principally the long delays in protecting the rights and interests of employees and employers,” Specter said.
Peter Schaumber, chair of the NLRB, started off the hearing testimony by saying it was the policy of NLRB members to not comment directly on pending legislation. However, he said that he would discuss the recent activities of the NLRB and his assessment of how union elections overseen by the board were working.
NLRB Functional?
He told the subcommittee that even with three board vacancies, the NLRB was functioning well. He said that he and fellow NLRB member Wilma Liebman were responding to the pending caseload and that the board had been able to schedule union ratification elections in a timely manner.
“By any definition, the NLRB is successfully carrying out its statutory mission to administer the representation procedures authorized under the National Labor Relations Act,” said Schaumber. “The board has established as one of its overarching goals to conduct elections within a median of 42 days of petition filings. We exceeded that goal in fiscal year 2007 with a median timeframe from petition to election of 39 days—and 93 percent of all elections were conducted within 56 days.”
However, Liebman disagreed. She told the Senate panel that she believed that the National Labor Relations Act was in need of reform, citing recent research that concluded that U.S. labor laws had “ossified.”
She mentioned several articles that she had published over the past few years, plus her testimony before the House of Representatives in February 2007 on the EFCA.
“There, I observed that the National Labor Relations Act, by virtually all measures, is in decline. I cited the board’s plummeting case intake, noting that labor unions have turned away from the board, and especially from its representation procedures,” she said. “Consistent with my previously-expressed views—but without recommending any particular statutory changes or commenting on pending legislation—I would welcome comprehensive re-examination of a law that has not been substantially revised for more than 60 years.”
Liebman said she had been a frequent dissenter on many of the board decisions made during the past two years and that she understood why labor unions and workers would be disillusioned with the board.
“If employees and labor unions turn away from the board because they lack confidence in it, then the board’s effectiveness is diminished. Even if I am not in a position to suggest what should be done, I fully understand why the subcommittee and the Congress would be concerned,” she said.
While the hearing could reignite some debate on the EFCA, the legislation is unlikely to move this year, according to sources familiar with the issue. Organized labor has made passage of the bill its top legislative priority, and the issue could become a hot topic for presidential and congressional candidates as they seek support from workers and labor unions.
However, the bill won’t move in Congress until after the elections, says John Raudabaugh, a partner and chair of the labor and employee relations practice for the law firm of Baker & McKenzie.
“You won’t see EFCA move until sometime next year, and if the Democrats win the White House and make more gains in Congress, then there is a chance it will be enacted,” said Raudabaugh, who is a former member of the NLRB and a witness at the Senate subcommittee hearing.
According to Raudabaugh and other political observers, the EFCA will face a tough time passing the Senate because supporters don’t have the 60 votes needed to invoke cloture and thwart any filibusters of the measure.
“Still, employers need to be aware of what’s happening and be ready to respond to any efforts to pass this bill,” he said.
(shrm.org)
