Card Check: The Game’s Afoot, Still

Peter Kirsanow, a Cleveland attorney and former member of the National Labor Relations Board, is a keen observer of both the legal and political aspects of the Employee Free Choice Act, so we take his latest commentary at National Review’s The Corner seriously. It’s speculation, to be sure, but worth considering.

Kirsanow suspects the references in Senator Specter’s announcement about “equal access” could be the signs of what labor would call a “compromise” in the making.

From “The EFCA-Lite Trap“:

The timing of Senator Specter’s remarks is interesting. When EFCA was reintroduced in both Houses two weeks ago, Senator Harkin repeatedly invoked “equal access,” as if to signal a possible compromise based on that concept. Almost contemporaneously, Representative Sestak (D, Pa.) introduced an alternative bill that featured equal access. Last weekend, compromise proposals were floated that incorporated some of the elements Sen. Specter would be willing to consider, including equal access. And SEIU president Andy Stern (possibly the most influential EFCA supporter) is quoted in the current issue of Business Week as understanding that EFCA might need to be changed to secure passage.
It’s doubtful this flurry of activity is mere coincidence. The EFCA campaign is about to proceed to another level. Employers should be prepared to address the implications of quickie elections, equal access, and limited-interest arbitration — the combination of which would amount to “EFCA Lite.”
The elimination of secret-ballot elections was the big drag on EFCA’s prospects for passage. Now that card check may be off the table, EFCA opponents have lost their most effective talking point. Consequently, wavering senators may now be more inclined to vote for the remaining provisions of EFCA, plus quickie-election/equal-access provisions that make union organization almost as easy as card check.
Senator Specter’s announcement merely concludes Round Two.

Kirsanow is reading too much into the flurry, we think. Rep. Sestak (D-PA) introduced his bill (H.R. 1355) a week before card check, had no cosponsors, heard from the unions and cosponsored EFCA (H.R. 1409). Not really a factor.

Business groups like the NAM and our allies at the Coalition for a Democratic Workplace are NOT declaring victory and surrendering the playing field to organized labor on the bill. The unions, meanwhile, will set their sites on Senate elections 2010 in an attempt to get to 62 or 63 Senators and then ram the bill through.

Yes, efforts will likely continue to pass other bargaining-related legislation this Congress. Still, it’s our sense that Sen. Specter’s decision now frees up organized labor and their congressional allies to pursue other parts of labor’s agenda — things like paid family and medical leave, comparable worth and even new ergonomics standards. Even while the Employee Free Choice Act was being fought over prior to its introduction, organized labor was winning many legislative fights — such as inclusion of Davis-Bacon wage provisions in the stimulus bill. Card check remains a fight, but different battlefields are coming into view.

Join the discussion One Comment

  • Michael says:

    Whether unionization is positive for business, the workforce, or the economy is a conversation best left to someone in a field other than mine. As an I/O Psychologist my interest lies in organizational success through the well-being of employees.

    If no other good comes from EFCA, at least it is forcing companies to have an important conversation. In searching for ways to combat unionization, employers are realizing they need engaged employees – who feel communicated to, safe, valued, and a strong commitment to the company. I’ve been hearing a lot of chatter from the legal community about the need for ‘union vulnerability audits’ to ensure a satisfied workplace where unions are viewed unnecessary. Whether or not the EFCA passes I think employees (and organization) will benefit from the discussion.

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