The current version of EFCA may be in trouble. However, passage of a different version, which would still favor unions, may well happen.
A couple of weeks ago Blanche Lincoln (D-AR), in a well-reported flip-flop, joined Arlen Specter (D-PA) in opposing EFCA. Specter himself made news last week when he announced his departure from the Republican Party. Notwithstanding his switch back to the Democratic Party which he left in the 1960’s, the senior Senator from Pennsylvania confirmed for the news media that he continues to oppose EFCA. Thus, the recent momentum against organized labor’s most important legislative endeavor does not appear to have reversed – for now.
What are the current positions of Colorado’s two Democratic senators? Senior Senator Mark Udall has stated that he will support cloture for EFCA. Udall announced his decision at the Colorado Association of Commerce and Industry. Udall has committed to vote for cloture -- to bring the bill to the Senate floor for debate – but he has stated he may or may not vote to pass the bill depending on the amendments introduced to the bill. In contrast, Junior Senator Michael Bennet continues to express deep skepticism about EFCA. Bennet has stated that he did not believe a passable version of EFCA had been presented. As the debate surrounding EFCA is charged on all sides, Bennet feels that cloture on an unpassable bill will only cause division in the Democratic Party, creating further hardship in passing healthcare reform which Bennet feels is a more pressing issue than EFCA. In the meantime, both organized labor and the business community in Colorado are continuing their respective efforts to persuade Senator Bennet by inviting him to speak before their constituents.
So where does the motion for cloture stand? Even with the likely addition of Al Franken as the next Senator from Minnesota, the Democrats need 60 votes for cloture to move the bill to the Senate floor for debate. With Lincoln and Specter opposed to the current version of EFCA, it would not have enough votes for cloture of debate. To obtain cloture, the Democrats need to find two more votes from four uncommitted senators – Murkowski (R-AK), Collins (R-ME), Snow (R-ME) and Voinovich (R-OH) – however, they are all Republicans.
Other senators may follow the lead of Tim Johnson (D-SD) who recently said he would be more comfortable with a watered-down bill, which would take out card check or interest arbitration or both.
There is an increasing possibility that certain senators from both sides of the aisle would be interested in ultimately reaching a compromise deal that takes out card check and interest arbitration, but includes the stronger penalties for unfair labor practices and expedited elections well short of the 42 days permitted under the National Labor Relations Board regulations today. Shortening the election to 21 days or less would greatly hinder an employer’s ability to win an NLRB election, as there would be little time to mount an informational campaign against the union.
The legislative future of EFCA continues to be fluid. We will keep you posted.
Feel free to direct comments or questions to Gene Commander at Polsinelli Shughart PC, gcommander@polsinelli.com or 720-931-1160.
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