Senator Arlen Specter announced his opposition to the Employee Free Choice Act as currently proposed. His vote was critical to the Democrats efforts to invoke cloture under Senate rules and bring the bill to a vote that would almost certainly have gained a simple majority to pass. The Senator’s comments on the Senate Floor acknowledge the importance of his vote:
In June 2007, the vote on the Employee Free Choice was virtually monolithic: 50 Senators, Democrats, voted for cloture and 48 Republicans against. I was the only Republican to vote for cloture. The prospects for the next cloture vote are virtually the same. No Democratic Senator has spoken out against cloture. Republican Senators are outspoken in favor of a filibuster. With the prospects of a Democratic win in Minnesota, yet uncertain, it appears that 59 Democrats will vote to proceed with 40 Republicans in opposition. If so, the decisive vote would be mine. In a highly polarized Senate, many decisive votes are left to a small group who are willing to listen, reject ideological dogmatism, disagree with the party line and make an independent judgment. It is an anguishing position, but we play the cards we are dealt.
The Senator’s floor comments left open the possibility that he would support some other initiative to reform the unionization process and identified the following specific suggestions:
SOME SUGGESTED REVISIONS TO THE NATIONAL LABOR RELATIONS ACT
(1) Establishing a timetable:
(a) Require that an election must be held within 10 days of a filing of a joint petition from the employer and the union
(b) In the absence of a joint petition, require the NLRB to resolve issues on the bargaining unit and eligibility to vote within 14 days from the filing of the petition and the election 7 days thereafter. The Board may extend the time for the election to 14 additional days if the Board sets forth specifics on factual or legal issues of exceptional complexity justifying the extension.
(c) Challenges to the voting would have to be filed within 5 days with the Board having 15 days to resolve any disputes with an additional 10 days if they find issues of exceptional complexity.
(2) Adding unfair labor practices:
(a) an employer or union official visits to an employee at his/her home without prior consent for any purpose related to a representation campaign;
(b) an employer holds employees in a “captive audience” speech unless the union has equal time under identical circumstances;
(c) an employer or union engages in campaign related activities aimed at employees within 24 hours prior to an election.
(3) Authorizing the NLRB to impose treble back pay without reduction for mitigation when an employee is unlawfully fired
(4) Authorizing civil penalties up to $20,000 per violation on an NLRB finding of willful and repeated violations of employees’ statutory rights by an employer or union during an election campaign
(5) Require the parties to begin negotiations within 21 days after a union is certified. If there is no agreement after 120 days from the first meeting, either party may call for mediation by the Federal Mediation and Conciliation Service
(6) On a finding that a party is not negotiating in good faith, an order may be issued establishing a schedule for negotiation and imposing costs and attorney fees.
(7) Broaden the provisions for injunctive relief with reasonable attorneys’ fees on a finding that either party is not acting in good faith
(8) Require a dissent by a member of the Board to be completed 45 days after the majority opinion is filed;
(9) Establish a certiorari-type process where the Board would exercise discretion on reviewing challenges from decisions by an administrative law judge or regional director.
(10) If the Board does not grant review or fails to issue a decision within 180 days after receiving the record, the decision of the administrative judge or regional director would be final.
(11) Authorizing the award of reasonable attorneys’ fees on a finding of harassment, causing unnecessary delay or bad faith
(12) Modify the NLRA to give the court broader discretion to impose a Gissel order on a finding that the environment has deteriorated to the extent that a fair election is not possible.