Waiting in the wings while health care reform continues to hog center stage is the Employee Free Choice Act (EFCA), better known as “card check.” Introduced in both the House and the Senate in March, the legislation (HR 1409 /S 560) would allow for unionization of a company through a collection of a majority of “authorization cards” from a company’s employees in lieu of the secret ballot process currently provided for under the National Labor Relations Act (NLRA). The bill also includes provisions for binding arbitration between workers and employers if the parties do not reach an agreement within 120 days and an increase in fines and penalties for unfair labor practices committed by employers.

The Elusive 60 Votes

The seating of Minnesota Senator Al Franken on July 7 theoretically gave Senate Democrats a filibuster-proof majority of 60 votes that could overcome any Republican procedural moves to block the legislation. That said, the Democrats may have to further adjust their priorities to keep that majority in line. Largely because of the provisions noted above, this has become a highly contentious piece of legislation that has sparked fierce, not to mention expensive, lobbying and advertising campaigns.

Within the halls of Congress, there were just enough moderates who opposed the card check provision to cast serious doubt on the possibility of reaching the 60-vote threshold. Senator Dianne Feinstein (D-Calif.), a past sponsor of the bill, announced that she was seeking alternative legislation that would be less divisive during the harsh economic times. Then Sen. Arlen Specter

(D-Penn.), who had also previously supported the bill, declared his opposition — an announcement seen by many as the end of any hope of assembling enough votes to break a filibuster. Feinstein and Specter were soon joined by Mark Pryor (D-Ark.), Blanche Lincoln (D-Ark.) and Ben Nelson (D-Neb.). As a result of such defections, the card check provision has been scuttled for now.

Even with its removal from the equation, the Democrats still have concerns about getting all 60 votes with two of their members absent for health reasons — Sen. Kennedy (D-Mass.) and Sen. Byrd (D-W. Va.). At press time, the magic 60 votes was still a moving target.

What’s on the Table?

The abandonment of the card check provision paves the way for what could be the biggest labor reform bill since the Wagner Act of 1935. Under the proposed revisions, union elections would be held within five to 10 days after 30 percent of workers sign cards in favor of having a union. According to the National Labor Relations Board (NLRB), the current median time for an election is 38 days. The revised proposal would also place restrictions on an employer’s ability to conduct anti-union meetings.

Another compromise up for discussion is the lowering of the threshold for triggering a union election to less than 30 percent of workers.

With the disappearance of card check, the debate has now shifted toward another, equally controversial provision still in the bill — binding arbitration. As noted above, the provision would require an arbitrator appointed by the NLRB to intervene whenever a union entering a new workplace fails to settle on a contract with an employer after 90 days of bargaining and 30 days of mediation. The fear for employers is that government-nominated arbitrators will intervene to enforce new contracts on wages, benefits and days off that would be binding for two years There appears to be little doubt in their minds that labor unions would have a distinct advantage in achieving a favorable decision through such mediation.

Is Compromise Possible?

Letting go of the card check provision was a major defeat for the AFL-CIO and Change to Win, the two national labor union federations that have invested millions in lobbying for the provision as a means of helping steady their dues base amidst a steady decline in the number of workers within these organizations over the past 50 years. Nonetheless, union executives are still claiming victory in spite of the defeat. Even a modified bill would still offer a major overhaul of labor laws that would help unions gather more members. For example, the current proposal would expedite the holding of elections for union recognition and increase penalties for employers that engage in unfair labor practices that occur during organizing drives.

Suggesting the fight over the card check provision may not yet be over, Service Employees International Union President Andy Sten issued a telling statement in response to recent developments in the bill: “As we have said from day one, majority signup is the best way for workers to have the right to choose a voice at their workplace.
The Employee Free Choice Act is going through the usual legislative process, and we expect a vote on a majority signup provision in the final bill or by amendment in both houses of Congress.”

While the unions are looking for a compromise that would allow them to achieve some of their goals and still get the bill across the finish line, most business lobbyists are saying that there can be no compromise as long as language to circumvent the secret ballot process and the arbitration provisions remain in the bill. Small business owners argue that it is unrealistic to expect that a contract can be “hammered out” in 120 days, especially with a third party who might not know the business.

Their real fear, however, is that the provision could force terms they cannot afford, eventually forcing them out of business.

Although no vote is expected to occur before health care reform has been dealt with, it is important to keep the pressure on. As a member of the Coalition for a Democratic Workforce NUCA was opposed to the EFCA from the start and continues in its efforts to protect businesses from the potential consequences of the bill’s unfavorable provisions.

Colleen Wetherill is a NUCA Government Relations Intern and a senior at New Mexico State University double-majoring in Government and Law & Society.