Six months ago, I would have bet my 401(k) plan that the Employee Free Choice Act (EFCA) would pass in the first 100 days of an Obama Administration. Who knew the economy would so effectively pummel both my 401(k) and EFCA at the same time. It is now a month into President Obama's first 100 days and no one is still predicting the fast passage of EFCA. However, it is still likely that there will be changes beneficial to unions in the coming months, even without immediately passing amendments to the National Labor Relations Act, like EFCA.
President Obama was recently asked by The Washington Post about the likely timing and substance of EFCA passage. His exact words tell the story better than I can:
… wages and income have flat-lined over the past decade … part has to do with forces that are beyond everyone's control -- globalization, technology and so forth. Part of it has to do with workers having very little leverage … larger and larger shares of our productivity go to the top and not to the middle or the bottom.
Unions serve an important role.… There are steps we can take other than the Employee Free Choice Act that will make a difference. I think the basic principle of making it easier and fairer for workers to join a union is important. And the basic outlines of the Employee Free Choice Act are ones I agree with.
But I will listen to all parties involved including from labor and from the business community, which, … considers this the devil incarnate. . . . If (business') arguments are "we think there are more elegant ways of doing this or -- here are some modifications or tweaks to the general concept that we would like to see" -- then that's I think a conversation that not only myself but … folks in labor would be willing to have. . . . My focus first is on those key economic priority items . . .
Based upon President Obama's comments, as well as recent interviews with other elected EFCA supporters, here are my February 2009 predictions on EFCA passage:
- The Obama Administration will do all it can, within the current structure of the NLRB and the NLRA, to make unionization easier.
- If Unions can push EFCA through, they are committed to doing so. If it cannot be pushed through as it is and if a compromise on EFCA can be had, such as shortening the post-petition secret ballot election period, it will be considered and passed quickly. (I note though, that nothing in Section 9 of the NLRA currently requires a specific post-petition election time period before holding secret ballot elections).
- If no compromise is possible in the near term, Reid and Pelosi will still push for passage of EFCA as soon as they can muster the votes.
- Efforts by employers to put "your house in order" in the workplace are still critical: a) training of supervisors; b) lawfully-performed surveys of employees; c) evaluating and updating current employment policies and practices; and d) educating employees about union cards AND on what good benefits they have beyond their W-2 wages.
- There is still no solution to the constitutional or "takings" problem created by EFCA if the government is allowed to impose a collective bargaining agreement on an employer.
- Efforts to notify elected officials of your opposition to EFCA are still very important.