On September 15, 2009, Sen. Arlen Specter (DPa.) announced to the AFL-CIO convention that a group of senators had “pounded out a compromise” on the proposed Employee Free Choice Act (EFCA). The compromise outlined by Specter did not include the polarizing card check recognition provision, but rather provided for “quickie elections.” Specter also announced to the AFL-CIO delegates that the compromise included tougher penalties for employers who violate labor law and binding arbitration to resolve first contract disputes (both concepts were included in EFCA as introduced in March 2009).

Sen. Specter indicated that a small group of senators, which includes Sen. Sherrod Brown (D-Ohio), have agreed on an “outline” of a compromise bill that they believe would garner the necessary 60 votes to avoid cloture and allow the bill to be brought to the Senate floor for debate and a vote. Specter conceded that many details still needed to be worked out, but he predicted passage of a bill before the end of the year. A spokesperson for Sen. Tom Harkin (D-Iowa), who is responsible for shepherding EFCA through the Senate, indicated that a “consensus on core principles exists,” but would not elaborate.

However, following Specter’s speech, AFL-CIO officials denied that a deal on the legislation had been reached and denied that card check had been dropped from compromise discussions. The AFL-CIO stated that it had not “signed off” on any compromise and that proposed language was still being developed.

With the support for card check declining in the Senate, more attention has been focused on the binding arbitration issue. As introduced, EFCA would require binding arbitration if no agreement had been reached within 120 days of the commencement of first contract negotiations. Sen. Specter indicated that binding arbitration turned out to be the most important part of the bill because nearly half of first contract negotiations end without an agreement being reached. According to Sen. Specter, the arbitration compromise would involve “last, best offer binding arbitration” (the type of arbitration used by Major League Baseball), but that the timeframe for when binding arbitration would take place had not been “pinned down.”

The U.S. Chamber of Commerce responded that last, best offer arbitration would not be an acceptable solution to the business community. The Chamber observed that while this type of arbitration is used by Major League Baseball to determine the compensation for individual players, setting salaries for an entire workforce is much different.

The consensus on both sides of the issue is that, regardless of the contours of a compromise bill, EFCA will not be taken up by the Senate until after Congress has dealt with health care reform.

EMPLOYERS: Visit Bricker & Eckler LLP’s EFCA Resource Center (http://www.bricker.com/legalservices/practice/employ/legislation/) for news and updates on the Employee Free Choice Act legislation in the 111th U.S. Congress.