It is Wednesday morning and I am beat.
After staying up late to see whether there would be a call in Minnesota, Georgia, Alaska and Oregon (there wasn’t) I finally hit the sack around 1AM. Things aren’t any clearer this morning.
As I write this today it looks like there will be a runoff in Georgia. In Oregon the Republican has a slim lead with 75% of the ballots counted – still way too close to call (Update 11/05/08 at 6:10 PM – Merkley just pulled into the lead). Minnesota is headed for a recount. It looks like Alaska will remain a Republican seat (Update 11/06/08: I hear there are over 50,000 uncounted ballots in Alaska and that seat will be up in the air for a while).
Based on this, it looks like Democrats will have between 56 and 58 seats when all is said and done (including two independents who caucus with the Democrats, although Joe Lieberman may be kicked out of the Democratic caucus tomorrow).
What does that mean for the EFCA?
I handicap things like this: If you are predisposed to take a “wait and see” approach to the EFCA, you’ll find some evidence to support that course of action. The Democrats will need to peel off 2 to 4 Republican votes to get the EFCA past a filibuster in the Senate. Whatever happens it is unlikely that the legislation will sail through the Senate without debate or at least some compromise.
If you are predisposed to be proactive, you’ll see plenty of reason to worry about some version of EFCA passing in the first half of 2008. The bill will fly through the House. Both Independents will vote for the legislation. Senator Specter from Pennsylvania will vote for some version of the EFCA (he will probably be a key leader in the Senate negotiations on the bill). Thus Democrats should only need 1 to 3 additional votes to overcome a filibuster.
The Republican party, after the drubbing it has received in the last two mid-term elections, will be far from unified. There will be a lot of soul-searching among moderate Republicans and unions will be putting massive pressure on legislators to pass something. Further, those who think the “squishy” Republicans will not cave into pressure from unions should not lose sight of the fact that unions are not even asking these Senators to vote in favor of the Free Choice Act. They are simply asking them not to filibuster the legislation. These Republicans will be characterized as protecting the right to vote by preventing a democratic vote on the legislation.
What will happen?
It is much too early to tell. I anticipate that some compromise version of the EFCA will pass sometime in the first half of 2008. It will probably include quick elections and increased penalties (perhaps even some sort of penalty for forcing an election and then losing – this is based on the UK model and is highlighted as a possible change by Specter in his article). It may even include some sort of interest arbitration (perhaps as a penalty for unfair bargaining).
Additionally, the NLRB is likely to receive increased resources in exchange for commitments to speed up its process and more aggressively enforce the statute. It is also very likely that the NLRB will actively expand the Act, including restricting the definition of a supervisor and perhaps even allowing “minority” bargaining units. The NLRB and Department of Labor are also likely to engage in rulemaking in an attempt to “level the playing field” for unions.
Let’s also not lose sight of the fact that the old law is still in place and unions – already energized during the election campaign – will be even more engaged now that they’ve got their man in the White House. Case in point: NLRB petitions were up more than 6% in September 2008 over the year prior. This is during a month when unions were expending enormous resources trying to get Obama elected President.
Smart companies will understand they have no time to lose now that the election results are in. It is very likely that some form of EFCA will pass. No matter what its form, the initiation point will be the signing of a union card. Your supervisors and employees must know what to do the moment they are confronted with one, and understand why a union may not be in their best interest or in the best interest of the company.
In an economic environment fraught with problems (and companies laying off employees at a rapid pace) being prepared for card-signing activity is more important than ever. Your company must make sure all employees are listened to and treated with respect and dignity, no matter the pressure on the bottom line. The companies that do this will protect their direct relationship with employees. Many of the ones who wait to see what the final legislation looks like will be heading into contract negotiations before the end of the year.
