Reversing his previous position in support of the Employee Free Choice Act (EFCA), Republican Senator Arlen Specter announced on March 24, 2009, that he would vote against the bill and any attempt by EFCA's supporters to overcome the expected Republican filibuster to stop its passage. Specter's announcement significantly impacts support for the short-term passage of the EFCA. In anticipation of a vote cast along party lines, Specter's vote represented the one Republican vote needed to ensure EFCA's passage. Now, in order for EFCA to pass, Democrats will need to obtain the support of at least one other Republican to support the bill, which may prove to be difficult.

Specter identified EFCA's elimination of the secret ballot election as the primary reason for opposing the bill but also opposes its arbitration provision, which would require disputes related to unresolved first contract bargaining issues be submitted to binding arbitration if the parties cannot reach agreement within 120 days.

Specter Could Support Alternatives

Specter still believes that labor law reform is necessary but thinks that amendments to the National Labor Relations Act (Act) represent the proper approach. Notably, Specter stated that he would reconsider his current position on EFCA after the economy recovers if amendments to the Act did not provide unions with sufficient bargaining power. Among other things, Specter identified the following as possible legislative changes to the Act that he would support:

  • Expediting elections.
  • Prohibiting home visits, prohibiting captive audience group meetings unless the union has equal time and prohibiting either side to engage in campaign activities within 24 hours prior to the election.
  • Requiring negotiations on a first contract to begin within 21 days after union certification and the establishment of a negotiation schedule, with either party calling for mediation if there is no agreement after 120 days.
  • Authorizing penalties of up to $20,000 per violation if an employer or union willfully and repeatedly violates employees' rights during an organizing drive, imposition of triple back pay when an employee is unlawfully terminated, and the imposition of costs and attorneys fees upon a finding that a party is negotiating in bad faith.

Democrats Vow EFCA Is Not Going Away

Notably, Senate Majority Leader Harry Reid told reporters on March 24, 2009, that Specter's decision will not "make [EFCA] go away" and that Specter is "not the only Republican that has indicated a willingness to consider that something being done." Pro labor groups also said they will continue to vigorously lobby Senators, including Specter, to obtain EFCA's passage.

Politics are notoriously unpredictable, but Specter's announcement is a significant blow to the efforts to pass EFCA in the immediate future. Specter has left the door open, however, to support EFCA and/or other labor law reform at some later point. Stay tuned, anything can happen in politics. Baker & Daniels' labor and employment team encourages employers to protect and prepare themselves now in the event EFCA, or other labor law reform, obtains sufficient support to become law.