Pennsylvania Senator Arlen Specter, who in 2007 voted to invoke cloture on the Employee Free Choice Act (EFCA), came out yesterday and said his vote will be “no” this time around. That leaves the Democrats–Labor’s mouthpiece and sometime lackey–with 58 (59 if and when Al Franken arrives) votes to end a sure Republican filibuster. Unfortunately, 60 votes are required.

There’s another way to get it passed through the Senate through a process called reconciliation, which is generally reserved for budget matters. Reconciliation chokes off the filibuster option.

However, using that for such a controversial piece of legislation would be the equivalent of nuclear war–it could be enough to cost the Democrats dearly in the next election.

This leaves the Costco-Starbuck’s-Whole Foods compromise looking more and more like what will finally emerge–so long as sane minds prevail and the House and Senate act (for once) like adults.

Starbuck’s, Whole Foods and Costco have floated a proposal to level the playing field, as they term it, in union organizing. The group rejects two prongs of the proposed Employee Free Choice Act (EFCA)–the card-check and binding arbitration provisions–and keeps in place the current system of secret balloting.

What they do retain from the EFCA is the provision for increased penalties on employers who obstruct the unionization process or who otherwise threaten, intimidate or outright terminate activist employees.

What they offer in place of card check and arbitration are an expedited election process and equal access for the union to employee gatherings held pre-election for informational purposes, meetings which unions claim are currently used by employers to spread disinformation and scare employees into voting no.

The proposal was instantly rejected by Congressional sponsors of the EFCA as “written by CEOs, for CEOs.” An AFL-CIO spokesperson said it was “simply not an alternative.”

The three companies found little comfort in the business world either, where a line of no compromise has been drawn in the sand.

It appears that friends and foes of the EFCA alike have adopted an all-or-nothing appoach. Time will tell if one side or the other eventually blinks–or if both do.

(For the record, Costco is the only one of the three companies to be unionized, and it is just partially unionized through a handful of locations that were organized by the Teamsters when they were Price Clubs. Costco does, however, give all its employers the same wages and benefits that it negotiates with the Teamsters every three years. Whole Foods actually once had one unionized location in Madison, Wisconsin, out of 300 or so total outlets. The company’s co-founder, John Mackey, has routinely blasted the “intellectually bankrupt left” on his blog and derided unions as “like having herpes.” In fact, Mackey discovered an online community on Yahoo devoted to Whole Foods and contributed nearly 1400 comments over seven years using the pseudonym rahodeb, a variation on the name of his wife Deborah. This activity of his came into play when Whole Foods made an offer to purchase Wild Oats, and the SEC discovered that Mackey had used the online communities for Whole Foods and Wild Oats to game the deal. Whole Foods, to its credit, does provide all employees with free health insurance and competitive wages, factors which have helped stave off unionization at all locations save that one. Starbucks has been in and out of hearings and courtrooms in the past for alleged union-busting activities, and late last year was found guilty by a National Labor Relations Board judge and ordered to reinstate three employees with back pay. There is a Starbucks Union Web site, but its account has been suspended, which hosting services will do for unpaid bills, overuse of bandwidth, violations of terms of service, and other reasons. Even if I had the time, I doubt I’d be motivated to find out why the union’s site has been suspended–unless I can discover some kind of scandal hidden therein.)

The 1935 National Labor Relations Act (NLRA), commonly referred to as the Wagner Act, exempted small businesses from union organization, but the definition of small business has not been updated since 1959. The exemption ends when a small, non-retail business grosses $50,000 in a single year; for retail operations, the figure is $500,000 a year.

However, the Employee Free Choice Act (EFCA) now before Congress contains no exemption, nor any updating of the NLRA exemption. Thus…

Using census data, the Heritage Foundation (admittedly a pro-business, pro-capitalist outfit) estimates that 4,180,000 U.S. small businesses employing 38,934,000 Americans could end up being unionized.

The Foundation poses this scenario: Say you own an automobile repair shop employing five people. A union guy comes by at the close of work one day and corrals three of them into a local pub, where they all sign cards authorizing a union. Now, using a typical tactic, the union rep might call these cards “requests for information” or some such, but anyway, the shop is thereby unionized.

You, the owner, now have 10 days to begin negotiating with union guy, who now represents all your employees. He makes deliberately ridiculous demands for wages, benefits and working conditions, demands to which you could never accede and stay in business, so you refuse. In 90 days, rep guy calls in a federal mediator, but his demands stay the same. After 30 days, the mediator calls in an arbitrator, who then dictates a two-year contract that splits the difference between what you proposed and what union blackmailer wanted.

Result: Your costs go up by 50 percent, and you go out of business. You go back home and start working out of your garage, making as much or more than you did owning a business. Meanwhile, five people are out of work, but union guy has moved down the street to organize other small businesses.

Read the full scenario and explanation.

The business-feared, loved-by-unions Employee Free Choice Act (EFCA) was introduced in both the House and the Senate on Tuesday. Passage by the House seems a done deal, but in the Senate success hinges on getting 60 votes to choke off a filibuster.

With 58 (and potentially 59 with Al Franken) Democratic Senators, invoking cloture wouldn’t seem like such a high hurdle, but a handful of Senate Dems is having reservations about EFCA while Senator Arlen Specter of Pennsylvania, who voted for EFCA the last time around, is more hesitant in the midst of a re-election tussle.

Also, consider this: The Senate bill listed 40 co-sponsors, six fewer than in 2007. The House bill had 223 co-sponsors, compared with 230 co-signers on an earlier version of the legislation.

Already, there’s talk that the proposed law might be modified, and some have even speculated on a “grand bargain” in which the card-check provision is stripped out but the other portions are left intact.

Card check is what opponents like to call the EFCA since the law would allow workers to unionize once 50 percent plus one of them sign an authorizing card. A secret ballot would no longer be required but would be an option–at the workers’ choosing, not the employers’.

Even with card check out, the EFCA would still create many headaches for businesses. Its other provisions increase penalties for interfering with union organizing efforts and also mandate binding arbitration if union and company can’t agree on a contract. In fact, the final result of the arbitration could be a dictated contract forced down the company’s throat!

Representative Joe Sestak (D.-PA) has already introduced an alternative piece of labor legislation–the National Labor Relations Modernization Act–that basically removes card check but leaves the other provisions in.

Senator Specter, who voted with the Democrats to end the filibuster when the EPCA was first introduced in 2007, is no longer a sure “yes” vote. He’s facing an extremely tough primary opponent, Representative Pat Toomey, who vociferously opposes EFCA and almost beat him last time around. Plus, Specter himself authored a paper last summer for a Harvard symposium, in which he recounted horror stories of union lies and intimidation employed to trick and force workers into signing authorization cards.

At any rate, as Personnel Concepts has reported in its white paper on labor law under Obama, the battle over EFCA should be grand drama.

Can’t blame ‘em. Business owners in China’s manufacturing belt, their businesses up in smoke in the worldwide recession, are fleeing the country and leaving their workers high and dry–and yuan-less–rather than cope with China’s restrictive labor laws.

Of course, you can also call them rats for absconding with their companies’ loot while leaving their workforce with no money to survive on. China’s recent Labor Contract Law supposedly protects workers from unannounced factory closings and loss of pay, but many owners have been doing an end run and disappearing.

To date, some 20 million migrant workers, who relocate from the provinces to work in factory-rich Guangdong Province and send money home to their families, are now unemployed.

Since all workers are unionized in China (but have no right to strike), the national union is fighting back, and so is the government.

“We will use all labor-related laws to help migrant workers keep their jobs in this difficult time,” Zhang Mingqi, vice-chairman of the All-China Federation of Trade Unions said at the start of the National People’s Congress (NPC) session.

Some owners were also hopeful that the government would not enforce the Labor Contract Law and other provisions, but that’s not going to happen, evidently.

Xin Chunying, the deputy director of the legislative affairs commission of the NPC Standing Committee, said the Labor Contract Law will not be amended because of the current global economic downturn.

“The crisis has nothing to do with the law. We won’t amend the law because of the downturn,” she told a press conference of the ongoing NPC session Monday.

Anyway, all this looks eerily like what will happen in the United States if the Employee Free Choice Act (EFCA–see yesterday’s posting) passes. In a word, chaos. In two words, disappearing companies.

Sources tell Personnel Concepts that the much-feared-by-business Employee Free Choice Act (EFCA) will be introduced in the House of Representatives today. Well, nothing new here.

EFCA made it through the House’s 435 members once before and passed with flying colors, but its fate in the Senate may be another matter altogether.

Just today, the Wall Street Journal reported that "Labor Bill Faces Threat in Senate" because of some suddenly wavering Democratic support. Whether this wavering is just posturing or temporary remains to be seen, but EFCA does require 60 votes in the Senate to pass. Without 60 votes, a bill can be filibustered into extinction, which is exactly what the Republicans would gladly do to this piece of legislation.

EFCA, also called "card check" because it does away with the requirement for secret-ballot unionization votes and makes certification by majority signatures possible, has come under a withering attack from the U.S. Chamber of Commerce (which called it "Armageddon") and other business groups.

Even Obama supporter and billionaire investor Warren Buffett came out against EFCA in a CNBC interview yesterday. Time will tell what happens to EFCA, but I’m sure the folks at Personnel Concepts will keep us up to date with its news alerts.

One big labor law change anticipated in the Barack administration is enactment of the so-called Employee Free Choice Act (EFCA), but like the Holy Roman Empire, which was neither holy, Roman nor an empire, does the EFCA really embody freedom and choice? For those on the business side of things–company owners and managers, et al.–the answer is no: The unions will just coerce employees into signing off on a "card check" system, and then the union–or a pro-union arbitrator–will jam a contract down the company’s throat, one that may force it to cut workers, relocate or close.

On the union side, the picture is much different: Finally, we’ll be able to organize workers without the intimidation, threats, harassments and outright firing of union reps that companies typically employ prior to a secret-ballot unionization vote, as union organizers might phrase it. I’ve read horror stories from both sides of the issue–tales of union thugs’ coercing workers into signing off on the unionization cards, and anecdotes of employers’ threatening to close if there’s a union and firing the union’s employee-organizers on trumped-up charges. So, where does this leave us?

If EFCA passes, it will obviously be much easier to get 50-percent-plus-one-employee card signings and subsequent unionization, but will it also prompt an adverse reaction from employers, such as layoffs, outsourcing, relocating and/or closing down? The National Chamber of Commerce has called the EFCA "Armageddon." EPCA probably won’t be that deleterious in its effects, but it could.

The interesting thing here is that the Wagner Act of 1935, which gave the labor unions broader rights to organize workplaces, contained provisions for both secret ballots and card checks. Unionization could be accomplished through either means, but the 1947 Taft-Hartley Act removed the card check provision.

Now card check is back to rear its ugly head–or beautiful face–once again. Can the nation’s businesses and GOP stop this dead in its tracks? Should they? Therein lies the $64,000 question. (I probably should update that to the "$64-billion question" in light of all the current bailouts, stimulus packages and whatevers.)