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The Employee Free Choice Act: time for a compromise in Congress?

Date Posted: June 19 2009

By Mark Gruenberg
PAI Staff Writer

WASHINGTON (PAI) – Congressional supporters of the Employee Free Choice Act, trying to get the 60 senators they need to break a planned Republican-led filibuster, are discussing a compromise to replace a key provision, majority sign-up, with mail-in ballots in union recognition elections.

The mail-in provision was disclosed by unionists attending the big conference of progressives in Washington, June 1-3.   One pro-worker negotiator, Sen. Sherrod Brown, D-Ohio, confirmed to Press Associates Union News Service that mail-in balloting “is one option we’re considering.”  They’re still going through details, he added.

The talks are led by the act’s new sponsor, Sen. Tom Harkin, D-Iowa.  He told the activists – estimates ranged from 1,500 to 3,000 – that negotiations are continuing. Harkin reiterated that if they fail, he will bring the original legislation to the Senate floor to force an up-or-down vote.  Some reports said Vice President Joseph Biden, a longtime pro-worker senator, is actively participating in the bargaining, but Brown said Biden has not been in sessions he attended.

If the ballot provision is inserted in the proposed legislation, workers would vote by mail, in union authorization elections, still with the requirement that the union would need a majority of votes cast to win.  Mail-in ballots are now used in some union recognition votes, notably at airlines and railroads, under provisions of the Railway Labor Act (RLA), which covers those two industries.

That mail-in ballot provision would replace “majority sign-up,” where the union must get signed and verified election authorization cards from an absolute majority of workers at a shop.  The union could then demand and get automatic recognition, or it could choose to go through the National Labor Relations Board elections process.

Still another compromise being discussed, Brown said, is to legally shorten election campaigns.  That’s a position put forth by, among others, Service Employees President Andrew Stern.  Stern argues that shorter campaigns would give firms less time and scope for the rampant illegal intimidation, harassment, spying, threats and firings companies now use to combat union organizing.

The revisions of the Employee Free Choice Act are designed to bring over wavering Democrats, notably both Arkansas senators, California’s Dianne Feinstein, and Republican-turned-Democrat Arlen Specter of Pennsylvania, in what will be the key vote, to break the GOP talkathon against the bill, labor’s #1 legislative priority.

Unionists discussing the legislation said they could accept mail-in ballots as a possible substitute for majority sign-up, though speakers at the conference – led by  Communications Workers President Larry Cohen and Steel Workers President Leo Gerard – strongly campaigned for the original provision. 

“But it would be no problem organizing” workplace by workplace with mail-in ballots as the deciding factor, one unionist said.  “The real problem is with other provisions” of the Railway Labor Act, he added. 

The particular RLA roadblock is an RLA section that orders unions to get 50%-plus-1 majorities from an entire company, not worksite by worksite.   That would make organizing large firms, such as Wal-Mart or Delta Airlines, difficult, if not impossible.

Whether unionists would accept a mail-in ballot compromise is open to question.  David Bonior, president of American Rights At Work, which is leading the pro-worker information and advertising campaign for the bill, said that if the mail-in is inserted, “He (Harkin) will bring it back to us and we’ll decide if we can support it.” 

Unlike prior years, when workers’ rights were downplayed, shoved into a corner or given lip service by the progressive groups, they took center stage at the conference, renamed “America’s Future Now” -- in recognition of electoral wins in 2006 and 2008 -- from its old “Take Back America” title.

The speakers urged the progressives to get strongly behind the Employee Free Choice Act, with a grass-roots campaign to put pressure on senators to vote for it, particularly in the filibuster vote.  Democrats hold a 59-40 majority in the Senate, with Minnesota’s second seat vacant but Democrat Al Franken leading in an election now tied up in court.  As a result, no Employee Free Choice Act vote has been scheduled.

“We need to say to every Democratic senator: ‘Which side are you on?’” Cohen told the crowd.  “It’s an uphill fight,” Harkin admitted in the same session.

The problem with courting the wavering senators, Cohen told Press Associates afterwards, is “they want to water down the bill before deciding how to vote” on the filibuster.  Meanwhile, “the Chamber of Commerce campaign” against it “put a lot of pressure on them,” adds Cohen, who chairs the AFL-CIO’s legislation committee.

“I’ve been meeting Democrats 1-on-1 who’ve had reservations” Harkin said of his talks with waverers.  “We always expected that if we have to make some compromises, we would, but there are three principles on which we will not compromise: An absolute

right to organize, a firm deadline for getting a first contract, and meaningful penalties.”

Cohen, in urging the progressives to grass-roots campaign for the legislation, held up a graphic with dozens of flags on one side – showing nations that allow majority signup recognition of unions – and one flag, of the U.S., on the other. It doesn’t.