Yesterday, during a weekly call, Sen. Claire McCaskill (D. Mo.) was asked about EFCA. Her answer was very interesting. She started out by indicating that she didn’t think EFCA would come up for a vote in the Senate, at least not in the format it was introduced:
"Well, I don’t think card check is going to come up, it has not come up and beliee me, if card check, the way it was drafted, was going to come up, it probably would have come up early in 2009 as opposed to now."
She went on to discuss ongoing negotiations over the bill:
"I think there is a lot of negotiation going on about chard check — businesses are at the table and frankly, I don’t think that card checking part is the part that’s being discussed at this point. I think that’s been abandoned."
Included in those negotiations are efforts to make the current system "fair":
"There is some talk about trying to make it fair. You know, you have secret ballot to decide to unionize but management can use card check to get rid of unions. You can imagine the pressure that’s put on people when the boss comes around with a card for you to check. That’s hard."
Click here for the audio recording of Sen. McCaskill’s remarks.
Two observations about Sen. McCaskill’s comments are important for the labor professional. First, while many employers will undoubtedly take heart that card check has been "abandoned," it is important to remember that EFCA is about more than card check. It also contains the mandatory arbitration provisions and substantial civil penalties that could serve to chill employer’s free speech rights. Moreover, card check could be replaced with "quickie elections," which for employers is not that different from card check.
Second, notwithstanding Sen. McCaskill’s remarks, labor professionals should not believe that management can take a petition around to their already unionized employees to ask them whether they still want to be part of the Union. Such conduct is a violation of federal labor law, and has been for a long time. Indeed, the NLRB in recent years has taken steps to increase the use of secret ballot elections. It has limited the circumstances in which employers may withdraw recognition from an incumbent union. It has also required employers to post notices explaining to employees their right to a secret ballot election in cases where an employer voluntarily recognized a labor union without an NLRB-conducted election.