It Could Happen to You - Public Policy
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SECTION: Public Policy

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It Could Happen to You

CED Magazine, April 2009

Article Date: 04-01-2009
Copyright(C) 2009 Associated Equipment Distributors. All Rights Reserved.

More than just a bad idea, the card check bill is a 'massive' piece of labor legislation that holds adverse consequences for business owners and employees alike - and it's very near the threshold of passing both houses of Congress.

Organized Labor’s top legislative priority – The Employee Free Choice Act (EFCA or “card check”) – is moving steadily through the halls of Congress with the subtlety of a wrecking ball, and about as much potential for destruction for American businesses of all sizes, as well as their employees.

First introduced in 2007, card check sprinted through the House of Representatives with head-spinning velocity, but was halted in the Senate that year. As of March 10, 2009, however, card check is officially back on Capitol Hill – that’s when the bill was reintroduced in both the House and Senate. According to Jade West, senior vice president of Government Relations at the National Association of Wholesaler-Distributors, union leadership wants this legislation badly, and card check is presently on a slightly slower-but-nonetheless-steady course to pass in the House sometime after the congressional Easter recess, setting probability for some action at the end of April or perhaps later.

Addressing AED members during a teleconference March 11 (AED’s Card Check Action Day, the first-ever action day event declared by the association), West made it clear that widespread written and telephone correspondence to both representatives and senators is imperative to prevent EFCA from being enacted into law. The month of April will be a pivotal opportunity for AED members to turn up the heat on Congress, and there is one singular message that must be articulated with utmost clarity.
“The vote that counts in the senate is not the vote on the bill,” said West. “The vote that will count is the vote on a motion to invoke cloture. Cloture is a process in the Senate by which debate is shut down; if they invoke cloture and stop debate on the bill,” she said, “the bill goes to the Senate floor and then it will pass with 51 votes. There will be as many as 58 or 59 votes for cloture, so it is a rock solid certainty that if they get cloture the bill will pass.”

Offering as much personal experience and testimonial to communications sent to House representatives and to senators is of great importance, West added. Senators especially will talk among themselves about the volume of feedback from the business community.

“The more communication there is from constituents to every member of the Senate, the more stir there is, the greater are the chances of persuading the gettables [senators who have not firmly asserted their position on card check],” said West.

She cited that congressional hearings on March 10 had featured the testimony of numerous pro-EFCA individuals extolling the virtues of unions and the evils of business, but the testimony that “sent shock waves through the place,” said West, came from an employee who had experienced negative pressures during a union organizing campaign.

“He talked about the way he was treated, the type of harassment, the disingenuous statements made by the unions, the flat-out lies they told the workers to induce them to sign the cards,” said West. “The gentleman ended his testimony with: ‘I beg you, please don’t do this.’ It’s being picked up [in Congress] as ‘Oh my gosh, maybe we ought to take a second look at this.”

Card Check’s Troubling Provisions
Enactment of card check will inflict a serious blow to business owners and their employees. Essentially, business leaders agree, the winner would be unions, which would gain powerful tools with which to increase their membership rosters – union numbers have sunk dramatically over the last few decades.
The three main provisions of EFCA remain intact from the original ’07 bill:

1.) It eliminates employees’ rights to a secret ballot in union organizing elections. Business groups including the Coalition for a Democratic Workplace (CDW, of which AED and NAW are board members) assert that absence of the secret ballot opens the door for union intimidation.

2.) The second part of EFCA establishes binding federal arbitration for initial collective bargaining agreements. The negotiation timetable for a newly organized workforce would look like this: Negotiations between the union and the employer must begin within 10 days of the union being certified; under the bill, if no agreement is reached within 90 days, either party can refer the dispute to the Federal Mediation and Conciliation Service to request mediation; if after 30 days there is still no agreement, the Service must refer the dispute to an arbitration board, which decides the contract terms – and those terms are binding on the parties for two years. Employees would lose the right to vote on their contract and employers would lose even more control over the terms of employment at their companies.
It boils down, according to AED Vice President of Government Affairs Christian Klein, to the troubling scenario of a government-appointed arbitrator – with no knowledge of your industry or interest in the company’s survival – making determinations about contract terms for an equipment dealership.

3.) The final part of EFCA increases penalties against employers who are perceived to be interfering with the unionization process.

West says that some so-called “Blue Dog” senators, moderate Democrats from conservative and heavily “right-to-work” states, don’t want to vote for card check but may be eager to seek a compromise bill that would allow them to vote in favor of something.

“But there is very little room for compromise,” said West. “The threat of a compromise is real [but] there is no compromise that would not be very bad legislation.” All three dimensions of the bill are equally detrimental, she indicated.

The Good, the Bad, and the ‘Gettables’
The bad news, according to West, is that the bill is expected to overwhelmingly pass in the House. It’s a given. The risk in the Senate is very serious, but she maintains that the business community has been successful in slowing the bill with intense advertising and public awareness campaigns in 2008.
“Frankly, we have totally won the public debate on the secret ballot message of the issue,” said West. “Everybody instinctively knows that abolishing secret ballot is just horribly bad policy.”

She added that the probusiness CDW is confident that, “We can prevail in the Senate.”

Some encouraging figures offer evidence that the anti-EFCA message is popping some dart holes in the bill’s well inflated tires.

  • The number of cosponsors of the House bill has dropped from 233 when it passed in 2007 down to 222 this year, despite the fact that Democrats gained roughly 25 seats in the House last year.
  • Likewise, card check had 46 Senate cosponsors in ’07 but was introduced this year with 40 even though Democrats picked up eight Senate seats.
Because the real battlefield upon which card check will either die or emerge victorious is the Senate, West has specifically identified a group of targeted senators she calls “the gettables.” AED members are urged to blanket these senators with letters and calls – phone calls from dealers within these key states to the senators’ state offices are especially poignant, says West, but an outpouring to all of them will make a dramatic impact. (Complete contact information and EFCA communication resources are made available online from AED – click on EFCA at

The top gettable senators include:

  • The two Arkansas senators, Blanche Lambert Lincoln (D-AR) and Mark Pryor (D-AR) – Lincoln has stated she does not wish to vote for this; she’s more concerned about the 90,000 unemployed people in her state than in helping unions garner new members. “She is very gettable,” said West.
  • Ben Nelson (D-NE) – he has said he is against the card check bill but he has not said how he will vote on that cloture vote. 
  • The new senator from Colorado, Michael Bennet (D-CO) – West says he is still finding his way around the issues, and he is very approachable on this one.
  • Kay Hagan (D-NC) – is probably not gettable but because she is from a very conservative, right-to-work state, she might be persuaded that this vote could be damaging to her.
  • Mark Warner (D-VA) – is a newly elected, moderate Democrat who was a good governor, says West. Although he is pro-business, he has no record on card check and has not yet stated his position.
  • Evan Bayh (D-IN) – a moderate Democrat who has been wrong on this in the past, says West, but is under intense pressure from the business community in his state.
  • Jon Tester (D-MT) – a freshman senator from a conservative state – he’s not a likely “get” but he’s possible.
“Frankly, the more senators hear about the issue…the more the message gets through up there that [card check] is seriously problematic,” said West.

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