The Senate has forced out the most controversial of the provisions in the Employee Free Choice Act as a means of finding enough votes to avoid a filibuster. Moderate Democrats insisted on removing language in The Bill Formerly Known As Card Check that allowed unions to avoid a secret-ballot election in organizing efforts from the EFCA before it got a floor vote. That gives opponents a partial victory, but EFCA still contains a poison pill that would put government in charge of management-labor negotiations:
A half-dozen senators friendly to labor have decided to drop a central provision of a bill that would have made it easier to organize workers.
The so-called card-check provision — which senators decided to scrap to help secure a filibuster-proof 60 votes — would have required employers to recognize a union as soon as a majority of workers signed cards saying they wanted a union. Currently, employers can insist on a secret-ballot election, a higher hurdle for unions.
The abandonment of card check was another example of the power of moderate Democrats to constrain their party’s more liberal legislative efforts. Though the Democrats have a 60-40 vote advantage in the Senate, and President Obama supports the measure, several moderate Democrats opposed the card-check provision as undemocratic.
In its place, several Senate and labor officials said, the revised bill would require shorter unionization campaigns and faster elections.
Businesses can live with this compromise on that particular provision. Unions had a legitimate gripe about employers stalling on elections and dragging out organizing campaigns, at least in some cases. Those limitations certainly beat the alternative offered originally in Card Check, which would have allowed unions to intimidate workers into signing the cards without any way to keep the abuse from locking employees into those unions. The secret ballot cleanses the process, and as it turns out, too many moderate Democrats agree with Republicans on that point.
However, an equally onerous provision remains: mandatory federal arbitration. Unions can stall on labor negotiations long enough to declare an impasse, at which point the federal government would impose binding arbitration on both sides. Why the federal government has a role in non-critical industries for management-labor negotiations is something none of EFCA’s backers have explained adequately. That essentially federalizes commerce everywhere in the US, with the government imposing wage controls by fiat, something that should concern both management and labor. Unions expect that administrations beholden to unions will favor their side most often in arbitration, and they’re probably correct, but they won’t always have Barack Obama in the Oval Office, either.
Katie Packer, executive director of the Workforce Fairness Institute, which has pushed hard against Card Check, issued support and a warning after this announcement:
The fact that supporters of the Employee ‘Forced’ Choice Act concede eliminating the secret ballot is not tenable is certainly a step in the right direction, but they now need to also acknowledge what the American people already know to be true – government mandated contracts on small businesses without the consent of employee or employer is a total non-starter.
The worst of Card Check has died a deserved death. We need to remain vigilant about the rest. However, as the New York Times reports, it will take a while for Congress to get to it. Thanks to the implosion of support for health-care and cap-and-trade legislation currently under consideration, EFCA will get pushed to the fall — or beyond.
Update: Andy Stern claims that this is just a dodge to avoid the filibuster, and that the card-check clause will return in the conference version of the bill:
“As we have said from day one, majority sign-up 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 sign-up provision in the final bill or by amendment in both houses of Congress.”
Keep your eyes peeled.