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Scott Brown In. Employee Free Choice Act Out. Union Spirits Down. Union Organizing Campaigns Going Up

By Brian Harris

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Last week, Scott Brown pulled off something that no Republican had done in Massachusetts in over three decades. He won a Senate election.

In achieving what three weeks ago was considered impossible, Scott Brown and the GOP have cast a major monkey wrench into a series of reforms that appeared headed to vote in early 2010.

Why?

Until last night, the Democrats held 60 seats in the Senate, a supermajority. And with a supermajority, the Senate could have invoked cloture on any bill. Cloture is the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter and thereby overcome a filibuster.

No 60 votes, no cloture. No cloture, no voting on any bill in the Senate. No voting on any bill in the Senate, no legislation gets enacted.

Organized labor?s agenda takes a huge hit.

One such bill that now may never make it to a Senate vote is the Employee Free Choice Act (EFCA), a measure that would effectively eliminate secret ballot elections for employees and make it easier for unions to organize businesses. On the list of union priorities in the Obama administration, it wouldn?t be a stretch to list health care as 1 and EFCA as 1a.

Last week?s election aside, even with a supermajority in the Senate, the Employee Free Choice Act did not have votes to get to cloture. Both Sens. Blanche Lincoln, D-Ark., and Arlen Specter, D-Pa., had gone on record as not only opposing EFCA?s card check provision, but also refusing to invoke cloture on the bill. (Other Senate Democrats had announced their opposition to card check, but had not taken a public position on cloture).

Yet, Specter breathed new life into the EFCA in August 2009, when he announced to a Netroots Nation conference held in Pittsburgh that he expected a cloture vote on a modified version of the EFCA. Speculation was that this modified EFCA would include quickie elections and best, final offer arbitration.

However, with the election of Brown in Massachusetts, Specter and the Democrats will need at least one Republican to support the modified version of the EFCA in order to get to cloture. At this point, that?s about as likely as Yankees? third baseman Alex Rodriguez defeating John Kerry in Massachusetts? next Senate elections in 2014.

Unions are down, but certainly not out

Even without the EFCA, don?t expect organized labor to lie down. Until last week, many big names in organized labor were forecasting an EFCA vote in the first few months of 2010. Under existing law, if organized labor loses a union election, it must wait a full year until it may attempt to organize the same employer. With the EFCA, that rule wouldn?t change. However, with the EFCA making unionization that much easier (and less expensive), unions had incentive to dial down their organizing efforts until its passage.

The statistics confirm this. The Bureau of National Affairs (BNA) reported that there were fewer representation elections conducted by the National Labor Relations Board (NLRB) during the first half of 2009 as compared to the first half of 2008, and the number of employees eligible to vote in the 2009 elections dropped by more than 40% compared to the number of eligible voters in 2008.

Unions can no longer afford to hold out for the passage of the EFCA. Unions are funded on union dues. Union dues are paid by union members. Fewer union members equals less money for unions. Less money for unions means less unions. Therefore, expect to see a marked increase in union organizing efforts over the next several months. Whether these organizing efforts bear fruit may be the best barometer we have in gauging public sentiment towards organized labor and unionization.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Mr. Meyer via e-mail and follow him on Twitter.

Full post as published by The Legal Intelligencer Blog on January 27, 2010 (boomark / email).