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Labor's Payoff

It's a lot less than they were hoping for.

11:00 PM, Mar 2, 2007 • By WHITNEY BLAKE
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ORGANIZED LABOR may want to celebrate the House vote March 1 that one newspaper headline touted as a "payoff" for the $56.7 million that unions contributed to Democrats in the 2006 midterm elections. The passage of H.R. 800, the "Employee Free Choice Act," is indeed a milestone for big labor, which watched it go down in defeat in the 108th and 109th Congresses. But it will have to be a quick victory dance; the bill will not pass in the Senate by a long shot. Speaking before the Conservative Political Action Committee on Thursday, Senate Minority Leader Mitch McConnell vowed: "I can assure you that it will meet a different fate when it gets to the Senate."

And this isn't the only recent example of a DOA labor bill: H.R.1, the Implementing the 9/11 Commission Recommendations Act of 2007 passed on January 9, included a little-noticed provision that wasn't one of the 9/11 Commission recommendations: a requirement that the Transportation Security Administration engage in collective bargaining with government unions whose members include airport security screeners. Sen. Harry Reid introduced the Senate version of the bill, the Improving America's Security Act of 2007, in early January, but the White House signaled it would veto this measure, and last Tuesday, 36 Republicans, led by Sen. Jim DeMint, signed a letter backing President Bush's veto, guaranteeing enough support to thwart a veto override.

The Employee Free Choice Act will meet its demise in the Senate for good reason. Senate Republicans understand the true implications of the EFCA, which is not simply about protecting workers' rights to organize, as Rep. George Miller, the bill's sponsor, states. The bill, which passed the house by a vote of 241-185, includes three main parts: card-check legislation, binding arbitration, and increased regulation and oversight of employers.

A card-check system is a means of allowing a company to unionize if the employees sign cards authorizing a union to represent their interests. Previously, this system was part of the 1935 Wagner Act (or National Labor Relations Act). Congress amended it with the 1947 Taft-Hartley Act, which extended the restriction of "unfair labor practices" to unions as well as employers, and set up the present system of secret-ballot elections for unionization votes. Under the EFCA, the independent National Labor Relations Board (which was established under the Wagner Act), must recognize a union if 51 percent of employees at a given job site sign authorization cards.

One of the main quibbles over the legislation language is whether employees are in fact, as the Democrats insist, still free to choose a secret-ballot election. Technically, the EFCA does not abolish the secret ballot per se. Currently, if a union collects signed cards from 30 percent of employees at a site, it can request a secret ballot election. With the EFCA, the union theoretically can still request a secret-ballot election with signed cards from 51 percent of workers, but has no incentive to do so. (The only case in which unions argue for secret ballot elections is during a union decertification effort.) So, the EFCA does, in a de facto sense, render the secret-ballot system meaningless. A press release from the House Education and Labor Committee sums it up perfectly: "If a majority of workers in a workplace sign cards authorizing a union, then the workers would get a union."

While the card-check portion of the EFCA has received the most attention, binding arbitration cannot be overlooked. This mandates that the federal government set binding contract terms, which will be effective for a minimum of two years, on employees and employers if the bargaining period exceeds 120 days (which is not uncommon). Employees do not have a vote over the terms; Jason Straczewski of the National Association of Manufacturers considers this "borderline unconstitutional."

What's also not widely publicized is the actions under the EFCA that fall under intimidation and coercion by employers. As Lawrence Lindsey points out in a February 2 Wall Street Journal piece, employers can be fined up to $20,000 for implementing pay raises, increased benefits, and improvements in working conditions during the period in which unions are attempting to organize workers. Incidentally, the EFCA doesn't establish stricter penalties for unions that engage in intimidation and coercion tactics.

Thirteen Republicans voted in favor of the EFCA, while just two Democrats switched party lines. One of the two, Congressman Dan Boren of Oklahoma, decided the bill was "just bad policy" after consulting with his state's labor leaders, according to his office.