The Virginian-Pilot, September 5, 2009, Saturday

The Virginian-Pilot

September 5, 2009, Saturday

The Virginian-Pilot

Businesses, unions remain at stalemate on 'card check' bill

The Employee Free Choice Act, organized labor's top legislative priority under a Democratic Congress and White House, sits dormant nearly six months after it was reintroduced in Washington.

The measure, which was passed in the House in 2007 but got stuck in the Senate, also is known as the "card check" bill. It would allow unions to represent workers if a majority at a workplace signed cards - a provision fiercely opposed by businesses. Now most companies require a majority vote in a secret-ballot election to demonstrate support for a union.

The bill has been slowed by the health care debate and the reservations of some moderate Democrats, but observers predict it will resurface in a revised form next year.

Here's a quick primer on the bill and its possible fate:

What are other provisions?

If contract talks are stalled between an employer and union for four months, the matter would be resolved by binding arbitration. It also would increase penalties for employers who harass workers during union campaigns.

What are the pros and cons?

A card check would take away workers' right to a secret vote and open them to intimidation from unions through "surreptitious" contacts, said Tom Lucas, an employment lawyer with Willcox & Savage.

Unions say workers already face harassment from employers before elections and need an alternative. Thomas Bell, business manager with Ironworkers Local No. 79 in Norfolk, recalled one worker who was made to stand by the fence at his work site for several shifts after he spoke out for a union.

The binding-arbitration clause would "allow government bureaucrats to mandate contract terms to workers and small businesses without their consent," said Danny Diaz, a spokesman for the Workforce Fairness Institute, a national coalition of small-business owners opposing the bill.

But Christy Setzer of the Service Employees International Union in Washington cited a study that said 44 percent of unions go without a contract two years after they're certified.

"This bill provides a measure that ensures employers will bargain in good faith," Setzer said.

Why so much fuss about it?

Businesses fear a loss of control over employees. Unions see an opening to reverse a decline in members, who account for 4.1 percent of the work force in Virginia. But Clete Daniel, a labor professor at Cornell University, said that "employers are exaggerating the danger that the law poses to their interests, just as I think labor is exaggerating the benefit it will derive from its passage."

If most Democrats support it and they hold the majorities in the House and Senate, why hasn't it been approved yet?

Democrats control 59 Senate seats. If opponents attempt a filibuster, they'd have to muster 60 votes to overcome it and bring the bill to a vote. But at least a handful of moderate Democrats have voiced reservations or opposition to the bill.

Where do local members of Congress stand?

Democratic Rep. Bobby Scott has voiced support. Republican Rep. Randy Forbes opposes it and has co-sponsored a substitute to require secret ballots when voting on a union. Democratic Rep. Glenn Nye "absolutely supports the rights of workers to organize, but he has some concerns with the House draft of the bill, including the details of card check," spokesman Clark Pettig said.

In the Senate, Democrats Jim Webb and Mark Warner have distanced themselves from the bill. Webb, a former supporter, said in a letter to the Virginia Chamber of Commerce last month that any bill "must preserve the secret ballot process" and that it is not "the best time" to vote on the issue. Warner, who has avoided staking a position, said in his letter to the chamber that he wants to provide "a fair and level playing field to both management and labor."

What are the bill's other obstacles this year?

The struggle over health care and the vacant Massachusetts Senate seat.

"The health care debate has let loose forces that have put a lot of legislation like this on hold," said Quentin Kidd, a political scientist at Christopher Newport University.

Plus, with Ted Kennedy's death last month, Democrats lost a reliable vote for the bill. Unless Massachusetts legislators change state law, an election for his successor is not expected until January.

Isn't President Barack Obama for it?

He backed it as a senator. Don't expect him to push hard for the bill now.

"His political-capital bank accounts are being sucked dry" by health care, Kidd said.

Said Cornell's Daniel: "Labor's agenda is not particularly important to him. He's learned that you don't have to be labor's friend to get their support. You just have to be less unfriendly than the Republicans."

What could happen next year?

The New York Times reported that six Democratic senators are working on a revision, minus the card-check provision, to win over skeptics. Pennsylvania Sen. Arlen Specter has suggested a few alternative clauses to mollify business and labor:

- Modifying the binding-arbitration provision to require the arbitrator to choose the last offer of either the union or employer.

- Reducing the waiting time when a union petitions the National Labor Relations Board for a certification election from 42 to 21 days.

- Requiring employers to offer "equal time" for unions to hold meetings on company property before an election.

Would those alternatives fly with business or labor?

No one's embracing them yet. Bell, from the ironworkers local, underscored the importance of the card check for unions.

"A good bill for labor," he said, would allow workers "to have the option to choose which way to organize."

On the business side, Diaz, of the Workforce Fairness Institute, said any bill with card check or binding arbitration clauses is a "non-starter." Lucas, the Willcox & Savage attorney, said an equal-time clause is "a serious infringement of private property rights" and a 21-day rule won't give companies enough time to make their case before an election.

Daniel said businesses still could block it.

"I can't see them rolling over in any way," he said, "even at a weak effort at labor-law reform.

Philip Walzer, (757) 222-3864, phil.walzer@pilotonline.com