In the couple of weeks since Arlen Specter’s blockbuster announcement that he would vote against cloture and (maybe) vote against EFCA, quite a few pundits have claimed the so-called “Free Choice” Act is dead for the near future. 
It may be a little hard to read the numbers, but these are the important ones: In the five years prior to 2009, on average there were 738 RC petitions filed in the first quarter (there were 964 total petitions filed on average during the same period). This year unions filed only 483 RC petitions in the first quarter – a massive 35% decline.
What could explain this incredible drop in RC petition activity. A number of possibilities come to mind. First, this was a historical election year and it is certainly plausible that unions and their organizers were pre-occupied in January with inauguration-related activities. But one would expect for petitions to pick up in February and March if that were the case.
Another explanation could be weather. This was a pretty tough winter, and that could have reduced petition activity (the first quarter is generally lighter in volume than other quarters). But this winter was not dramatically worse than similar first quarters over the last 5 years. Weather can’t possibly account for the 35% slide.
The economy has seen its worse decline since World War II, so that could have some bearing on the situation. But typically the worse the economic situation the better it is for unions. If anything one would expect the rapid slide (including the decline in 401(k) plans and massive unemployment) would create historical opportunities for unions to organize. But that’s not happened.
The most likely scenario – and the one I think is at play – is that union organizers are waiting for the law to change. We just spoke last week to an organizer recently laid off from a major union. He said that his union was sitting on cards while they wait for Congress to act. His union (which I won’t name to protect him – suffice it to say that it is one of the biggest there is) is that confident that the law is going to change, and sooner rather than later. That union, by the way, is probably in a pretty good position to know – it wrote a lot of the big checks in the last few elections.
I believe this strategy, if it is in fact being employed, is idiotic. And that’s what scares me the most. From where I sit I would guess the best-case scenario for 2009 is some kind of compromise legislation that includes quick elections and then whatever else unions can get (Specter mentioned baseball arbitration and equal access as possible reforms he would consider).
But if quickie elections are the compromise why would you sit on cards? The marginal advantage of a 21-day election over a 30-day election is certainly not worth sitting around for months letting authorization cards get stale. It just makes no sense. It is professional suicide to give up a year’s worth of elections (during probably the best historical time to organize workers since the Wagner Act was originally passed) betting on the possibility of legislative change. That is unless you know something about what is going to happen quickly, something that makes those cards valuable in and of themselves.
That is what bothers me. The only logical reason unions would basically quit filing petitions is if they think they’re getting card check in some form in the next year or so. That is the only plausible explanation. Of course unions could be wrong about the prospects of the legislation, and they may start filing a bunch of petitions now that Specter’s position is clear. But as of now, that doesn’t appear to be the case.
I’m not saying the fix is in. But I am saying that you should observe the behavior of unions – especially the behavior of union organizers – over the next few weeks to get a handle on what the unions believe is going to happen on EFCA this year. Might be a good time to pick up my EFCA Cheatsheet and brush up on EFCA planning – you know, just in case.
