By Alec MacGillis, Washington Post, March 29, 2009; Page A05
With the prospects for a landmark pro-union proposal looking increasingly shaky in Congress, senators in both parties are seeking other ways to reform labor laws, potentially reshaping what many expected to be a defining showdown of Barack Obama's presidency.
The Employee Free Choice Act, also called "card check," was dealt two blows last week. Whole Foods, Costco and Starbucks proposed a "third way" to reform labor laws that threatened to draw away conservative Democrats from card check. More damaging was the announcement by Sen. Arlen Specter (R-Pa.) that he would reverse his support for the bill.
This has left its supporters struggling to line up 60 senators to avoid a filibuster. Meanwhile, an increasing number of members of Congress are broaching a new question: Is there another way to help out organized labor?
"This is not the time or the place" for card check, said Sen. Blanche Lincoln (D-Ark.), who backed the bill in 2007. "To continue to attempt to bring up something that has already worked its way into being so divisive and distracting is unproductive."
The stakes go beyond the entrenched camps of business and organized labor. In a time of rising anti-corporate sentiment and awareness of income inequality, how Obama and congressional leaders decide to craft pro-union legislation will help determine the outlines of the post-recession economy and the shape of the Democratic Party.
More than a third of private-sector workers belonged to unions in the early 1950s; today, less than 8 percent do. As unions declined in the past three decades, wages have lagged behind rising productivity.
Unions still win more than half of the elections held at workplaces, but fewer organizing efforts are even attempted. Nearly half of new unions do not secure a first contract -- the law requires only that employers bargain in "good faith."
The card-check bill would let workers form a union by getting a majority in a workplace to sign pro-union cards, instead of having to hold a secret-ballot election, as most employers insist on; toughening penalties for employer violations; and requiring binding arbitration, similar to that used with public-sector unions, when employers and unions cannot agree on a first contract within 120 days.
Unions say the bill would let workers express their preference free of employer threats and prevent employer stalling during bargaining. Employers say it would expose workers to union intimidation and force them to give up control over how they run their business.
Few expect a true compromise, given how polarized the sides are. But Obama himself has signaled that he is open to alternatives that could gain broader backing, even as he continues to promote support for the bill.
Even many on the business side concede that the laws need updating. The last major reform was the anti-union Taft-Hartley Act of 1947, and complaints about the slow-moving National Labor Relations Board are legion.
"Labor law reform is long overdue," said Mike Asensio, a Columbus, Ohio, lawyer with Baker Hostetler who represents corporations. Joel Rogers, a pro-labor law professor at the University of Wisconsin, called the rules "ossified."
Alternative ideas run the gamut. The retailers' plan leaves out card check and mandatory arbitration but strengthens penalties, proposes fixed election dates to give employers less time to exert pressure and improves unions' access to workers. Unions called it inadequate; business reaction was mixed.
Specter, who faces a primary challenge next year, listed a series of reforms he could support, among them a requirement that elections be held within three weeks after organizers request one, tougher penalties for employers that illegally fire workers and steps to promote bargaining.
Rogers supports card check but said there may be other ways to limit intimidation by employers, such as exceedingly high penalties. "The problem is not secret ballot versus card check, it's the fear that workers have," he said.
But Robert Bruno, a labor relations professor at the University of Illinois at Chicago, doubts reforms short of card check can work. It is unrealistic, he said, to create neutral, civic-style elections in workplaces dominated by employers.
Employers "would have to agree to an environment where they give up a lot of control, a lot of prerogative," he said.
An equivalent debate is underway on the business side. Although some warn against any compromise, others say that if Congress does not take up limited reforms, card check could get a second wind. Specter himself warned of this, saying in an interview that if he loses in his primary to his conservative rival, the Democrats will definitely win his seat and gain a 60th vote.
"The business community has to look at the potential for my not being there after 2010," he said. He also amended part of last week's statement, in which he had said he might support card check in the future if lesser reforms do not work. He said in the interview that was intended only to encourage serious labor reform and that he would never vote for card check.
David Radelet, a Chicago lawyer who represents corporations, said Specter's 2010 warnings should be heeded. "It does create pressure for the business community to get something done now," he said.
Keith Smith, director of employment policy at the National Association of Manufacturers, said his group is asking its members which reforms they might accept. "We're going to see something again soon. It's all a matter of what it will look like and how it will move," he said.
Union leaders say they can still get 60 senators by amending the bill in committee but without undermining its fundamentals.
Business groups warn against this and say the debate will not advance until union supporters scrap the bill and start over. "If they make it all or nothing, they enhance their chances of getting nothing," Asensio said.
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