Although President Obama and members of his administration have reaffirmed their support for the Employee Free Choice Act (EFCA), this measure continues to lose its bearings. Introduced in March of this year, EFCA would allow the National Labor Relations Board (NLRB) to certify a union as the employees' exclusive bargaining representative based on a majority of signed authorization cards, thus dispensing with secret ballot elections in most instances. Otherwise known as "card check," this provision has lost considerable support both from the public and from former EFCA proponents. Equally controversial is the provision that would force the parties to submit to binding arbitration in the event the terms of a first contract are not reached within a four-month period.
When it became clear that Senate Democrats did not have enough votes to avoid a filibuster to block this legislation, supporters scrambled to hash out a so-called "compromise" measure in the hopes that an amended bill would garner sufficient backing to survive any opposition. Sen. Tom Harkin (D-Iowa), who replaced the late Sen. Ted Kennedy (D-Mass.) as chairman of the influential Senate Health, Education, Labor and Pensions Committee, has allegedly been holding closed-door talks to draft an amended bill. In September, Sen. Arlen Specter (D-Pa.) claimed that he and fellow lawmakers had "pounded out" a compromise bill acceptable to organized labor. This alternative EFCA purportedly did not include a card check provision, but still contained the arbitration mandate, as well as an expedited election schedule and allowance for increased union access to the workplace, among other terms that are objectionable to the business community. Shortly after Specter's announcement, union leaders denied that an EFCA without card check would be acceptable. Meanwhile, both labor leaders and members of Congress have acknowledged that consideration of EFCA - in whatever form - would take a backseat to healthcare reform, which will likely dominate Congress through the fall, if not into the new year.
A look at how laws similar to EFCA have fared in Canada provides some insight into why there is a mounting opposition to EFCA and a failure to come up with a viable alternative in this country. Canada's negative experiences with card check certification and first contract arbitration indicate that the premise behind EFCA is flawed. For a full discussion of Canada's EFCA-like labor policies and why such legislation would fail here as well, continue reading True North: Cross-Border Views on North American Workplace Laws, written by John C. Kloosterman and Douglas G. Gilbert.
