United States: Senator Sanders (I/D-VT) Re-Introduces Employee Free Choice Act

Last Updated: October 14 2015
Article by Seth H. Borden

At a press conference on the afternoon of Tuesday, October 6, 2015, Democratic presidential candidate Senator Bernie Sanders of Vermont announced that he and Rep. Mark Pocan (D-WI) would introduce the "Workplace Democracy Act" (S. 2142, H.R. 3690). This bill would amend the National Labor Relations Act to facilitate union organizing by requiring certification based on "card check" — the presentation of publicly collected employee signatures. The bill would also eliminate freedom of contract by requiring that the terms of a first labor contract be settled by an interest arbitrator after 120 days of negotiations between management and a union.

If this sounds familiar, it is because these provisions were repeatedly introduced and defeated in the legislative battles over the Employee Free Choice Act (EFCA) during the Bush presidency and President Barack Obama's first term. In fact, as one can easily compare, the text of Senator Sanders' bill reflects the first two of EFCA's three provisions verbatim.

The third section of EFCA would have increased the use of mandatory injunctions and financial penalties in unfair labor practice proceedings. Earlier last month, Senator Patty Murray (D-WA) and Representative Bobby Scott (D-WA) introduced the "WAGE Act" (S. 2042) which would increase NLRA penalties against employers far beyond that even contemplated by EFCA. We noted at that time that the WAGE Act's bargaining order remedy appeared to be a back-door approach to card-check. It seems now that legislative allies of organized labor are reviving the front-door approach as well.

Compare also, the change in the tone and content of the chief sponsor's rationale. Back in 2007, EFCA sponsor Rep. George Miller (D-CA), a devoted proponent of union organizing, still attempted to frame the issue as one of "fairness" and "opportunity":

One way to help the middle class is to provide them with a fair opportunity to organize and join unions, so they can have a say in what goes on in the workplace. ... The Employee Free Choice Act would add some fairness to the system.

Senator Sanders' introductory language is far more honest regarding intent. He concluded his remarks on Tuesday:

If we are serious about reducing income and wealth inequality and rebuilding the middle class, we have got to substantially increase the number of union jobs in this country.

The Senator's introduction of this bill, amid his campaign for the Democratic party nomination for the presidency, will be seen by many as an effort to bolster his strong standing with organized labor and to compete further with opponent Hillary Clinton for additional union endorsements. The furthest EFCA ever advanced was in 2007, when it passed a Democrat-controlled House of Representatives but was filibustered in a Senate with a simple majority of Democrats. Late Republican — and soon thereafter Democrat — Senator Arlen Specter of Pennsylvania doomed the bill when he opposed cloture in a widely reviewed floor statement. The bill is not likely to get much further than it did then, considering the current Republican majorities in the House and Senate. It may also be noteworthy that Democrat support for the bill lags far behind its previous incarnations as Senator Sanders' bill has only ten co-sponsors, as opposed to the 40-46 co-sponsors of the 2007 and 2009 bills.

For the many reasons outlined in our 2009 white paper on the bill, the Employee Free Choice Act was bad policy. It remains so, today — even under this new name. Still, prudent employers should follow closely the competing legislative proposals aimed at overhauling the National Labor Relations Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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