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It became necessary to destroy EFCA in order to save it

August 17th, 2009  |  Matt Pavich

>The proposed Employee Free Choice Act — once labor’s greatest hope for reform — has been dealt a death blow. And it was poor EFCA’s friends who delivered it.

To recap, a group of senators led by Tom Harkin (D-Iowa) has decided to remove the card-check portion that would allow workers to bypass secret-ballot elections, if a majority signs petition cards stating their intent to organize. According to the New York Times, Congress is considering replacing that provision with a measure that would require shorter and quicker elections.

The senators and their labor allies claimed that the card-check provision, which was once considered so important that the bill became known as the “card-check” bill, lacked sufficient support and would kill the overall labor reform bill. They suggested that shortening election periods and expanding union’s worksite access will curtail the ability of employers to thwart the will of those employees who desire unionization. But these hopes seem illusory, given the response of EFCA’s opponents.

Corporate lobbyists have promised to oppose fast elections, arguing that they would deny employers ample opportunity to educate employees about the downside of unionizing. They want the situation to remain status quo and, in dropping card-check, EFCA opponents have taken away their only bargaining chip. But it gets worse for labor fans.

The same interests that killed card-check are even more adamantly opposed to the arbitration provision, which would mandate arbitration if no agreement is reached after 120 days of bargaining.

Some refer to it as economic poison and other lobbyists refer to it as “an absolute nonstarter.” Newt Gingrich wrote that “EFCA’s imposed binding arbitration would irreparably wound one of the most extraordinary features in American society, the willingness to take risk to build an enterprise that generates prosperity for one’s family and community. It must never be allowed to be signed into law.”

Whew. That’s a lot of intellectual firepower being aimed at the provision. And how will labor fight back?

The suggestion here is that they can’t. In bidding adieu to card-check by completely taking it off the table, the senators deprived themselves of their one big stick. They could have wielded card-check to force acceptance of the arbitration, triple-damages, and shorter election period provisions. The bill has the most prominent supporter imaginable in President Obama and with card-check available as a bargaining chip, EFCA’s supporters could have wrested a meaningful reform bill out of the legislative gristmill.

Instead, they chose to dump card-check. Given the intense opposition to the arbitration provision, it’s entirely possible that the labor “reform” bill will merely impose treble damages against employers proven to have engaged in unfair labor practices. And unions will tell you how difficult it can be to prove unfair labor practices.

The timing of the announcement suggests that EFCA, for all intents, is a dead political issue. By dropping this pebble into the ocean that is Health Care Reform-dominated Washington, the senators ensured that the ripples from this decision won’t reach shore for a long time. By then, perhaps no one but the union rank and file will mind that labor reform was taken down by its very supporters.