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Employee Free Choice Act “Compromises”



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Two EFCA “compromises” were floated over the weekend. The one getting the most attention is the “Third Way” proposal by Starbucks, Costco, and Whole Foods through Lanny Davis, former special counsel to President Clinton. 

The Third Way compromise purportedly does not include card check or mandatory arbitration, but requires that secret-ballot elections be conducted by a date certain from the time a union petitions for an election. No delays are permissible. Moreover, unions would be permitted “equal access” to employees during working hours, so that employees may be persuaded to join unions. The Third Way would also include tougher penalties for unfair labor practices. There would be no mandatory arbitration wherein contract terms are dictated, but it would apparently include an expedited timetable for negotiations. During a teleconference on Sunday, Davis noted that his group has been in touch with the staffs of numerous senators regarding the Third Way proposal, which he claims was favorably received. 

The AP reports that another compromise fashioned by an attorney for certain unnamed companies in the service industry would also give unions equal access to employees if  30% of employees sign cards. If a union succeeds in getting 50% of employees to sign cards, then it may petition the NLRB for a “quickie” election to be conducted in 15 days. If a union succeeds in getting 70% of the employees to sign cards, then the union would be certified without a secret-ballot election (EFCA as currently drafted permits certification once 50%+1 of employees sign cards). This compromise is arguably worse than EFCA — retaining the essential features of EFCA while providing the fig leaf of maintaining the secret ballot.

The common denominator in both compromises is “equal access.” Equal access was a concept repeatedly referred to by Senator Harkin during the EFCA hearing two weeks ago and is also the central focus of alternative legislation introduced by Rep. Sestak (D, Pa.).

Although the Third Way proposal purports to be more palatable than EFCA, no details have been provided. However, an “equal access” provision coupled with a streamlined or “quickie” election process could produce unionization results not markedly different from card-check. 

Expect more compromises to be floated in the coming weeks. Nonetheless, business remains nearly monolithic in its staunch opposition to any bill even remotely related to EFCA, which business perceives to be, among other things, a massive job killer, especially in today’s economic climate.



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