EFCA Only Part-Dead

In a front page New York Times story from Friday, Democrats Drop Key Part of Bill to Assist Unions (free registration required), the public received the news: Card Check is dead. Card Check would have allowed workers to form a union whenever 50% +1 of the workforce signed cards. Currently, secret ballot elections are used.

Though the Employee Free Choice Act (EFCA) is often thought of as synonymous with "card check" the truth is that key provisions remain, including the arbitration clause. As a Denver Post editorial espousing the dangers of EFCA puts it:

"By far, the most economically destructive provision in EFCA is one that imposes binding arbitration if the parties fail to reach a contract agreement within 90 days.

This, in effect, means unions have zero incentive to bargain in good faith. They do have an incentive to make over-the-top demands, knowing they would be the starting point in arbitration hearings."

There are also enhanced penalty provisions for employers retaliating against employees attempting to organize.

While it appears that the secret ballot will rule the day (and the future), Congress continues to consider new procedures. After workers express interest in a union, a secret ballot election is held. The NYT article states that Senators are looking at a revised version of EFCA that would "require shorter unionization campaigns and faster elections" (5 to 10 days down from campaigns often extending 2 months).

As the Denver Post editorial demonstrates, the death of card check is not the death of EFCA nor is it the death of the intense debate taking place over the controversial legislation.

UPDATE (7/20/2009): This entry was mentioned in the Ohio Employer's Law Blog entry: Is "card check" really dead, along with further analysis and links to seven other blogs on this topic (it's quite popular).