Senator Arlen Specter (R-Pennsylvania) announced on March 24, 2009, that he will not support the Employee Free Choice Act (“EFCA”), a bill he co-sponsored several years ago. On the same day, Senator George Voinovich (R-Ohio) announced his opposition to the EFCA, making official what many observers had surmised. These announcements were exactly what pro-business groups wanted to hear. Prior to Sen. Specter’s formal announcement, it was widely believed that Sen. Specter would likely be the swing (60th) vote for cloture (which would allow a vote on the bill in the Senate) following the legislation’s expected passage in the House of Representatives. Now, Senate Democrats will need to search for at least one Republican senator to support a cloture vote, assuming Democrat Al Franken eventually fills the vacant Minnesota Senate seat and all fifty-nine Senate Democrats and Independents support a cloture vote on the bill. Following cloture, fifty-one votes are needed for a bill to pass the Senate.
In his announcement, Sen. Specter explained that the card-check provision and first-contract mandatory arbitration provision are significant problems. He further stated that there may be alternative legislation that would more appropriately expand organized labor’s role. Sen. Specter did state that he would be willing to reconsider his stance on the EFCA if such alternatives are unsuccessful and the “economy returns to normalcy.” Some of the alternatives raised by Sen. Specter include: establishing specific timetables for conducting election proceedings and resolving election disputes, creating additional unfair labor practices related to employer and union conduct during an election campaign, and authorizing civil penalties against employers and unions for unfair labor practices committed during an election campaign.
As a result of Sen. Specter’s announcement of his opposition to the EFCA and his suggestions for alternative legislation, Congress may well shift its focus from the current version of EFCA and explore compromise on other less drastic amendments to the National Labor Relations Act. However, one thing is certain, employers and pro-business groups cannot relax and declare victory. AFL-CIO President John Sweeney expressed disappointment and responded to Sen. Specter’s announcement by vowing the AFL-CIO will be “escalating our campaign” to pass the EFCA and other labor legislation reform in the coming weeks. In light of labor’s significant clout in the current Congress, it is a virtual certainty that Congress will continue to look for ways to address the concerns of labor unions and other pro-employee groups.