Jottings By An Employer's Lawyer

Thursday, June 04, 2009

EFCA - The Dangers of Reporting


I, like many noticed a story that was circulating yesterday from a California radio station that Senator Feinstein D-CA had made major news in a meeting with Santa Clarita Chamber of Commerce members by announcing that she would not support EFCA in any form. For anyone following the story, that sounded suspect and it didn't take long for the "breaking news" to be squelched.

Fairly effectively in this report from Firedoglake, Feinstein Bailing on EFCA” or “Reporter Punk’d By Chamber of Commerce”?, which includes an update with the following:
Speaking on background, a confidant of the senator went a bit further. "This must be [Shaffery's] first rodeo because the story hasn't changed much. It has been the same: She is looking for a compromise. And anyone who says otherwise is engaging in some wishful thinking."
Clearly efforts to compromise are being made. That they continue to be talked about makes me believe that organized labor is at least still debating whether to accept a compromised version of EFCA or take an all or nothing approach for the current bill. Doing the latter would delay any bill until 2011 and be dependent on not only gains in the Senate in 2010 elections, but also a change of heart on the part of a number of current Democrats who are not too keen on certain provisions.

Just to reiterate there are three key components to the bill. Here's my current view on where things stand:
  • Card check as proposed in the original bill is gone. Although consensus has not been reached on exactly what will replace it, there are lots of ideas being floated. My guess is that some sort of agreement that will pass muster can be reached, probably some form of expedited election and additional access for union organizers;
  • Binding arbitration to ensure an initial contract, in my view by far the most dangerous portion of the proposed EFCA, is still up in the air and could prove to be the deal breaker;
  • Increased penalties for violations of the NLRA has not got a lot of attention yet. I think that is because most agree some change is necessary and there is an assumption that if a deal can be reached on the two other issues, this one can be resolved as well.
  • Although possible, it seems fairly unlikely that anything could be passed until Al Franken is seated, but that seems to getting closer in time.
If organized labor is willing to take less than the original bill, and it seems to me that is the case, then this summer is, or at least should be, going to be a period of heightened vigilance for the employer community, regardless of what you may read about the various 'opponents' of the bill.

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