Capitol Hill

In March, the Employee Free Choice Act (EFCA), also known as "card check" legislation, was reintroduced in the 111th Congress. If enacted, EFCA would implement the most sweeping changes in U.S. labor law in 75 years, and it is organized labor's highest legislative priority.

EFCA would effectively eliminate federally supervised secret-ballot elections for union organizing by allowing a union to be formed when a majority of workers sign (or "check") authorization cards. The bill also would mandate binding arbitration if an employer and a union cannot agree on a contract within 120 days, which would result in government officials imposing the contract terms on both sides.

NRCA strongly opposes EFCA. The business community believes the right to a secret-ballot election is a cornerstone of democracy that must be preserved. And NRCA believes binding arbitration would be devastating to businesses because it would create enormous uncertainties and greatly diminish the control employers have over their operations. It also would deny workers the right to vote on a contract imposed by government officials.

Major gains by Democrats in the 2008 elections and Barack Obama's presidency—both strongly backed by organized labor—put EFCA supporters within striking distance of garnering the votes needed in Congress to approve the bill.

However, EFCA's ultimate fate is highly uncertain. NRCA and more than 500 other associations have mounted an aggressive lobbying campaign against EFCA in Washington, D.C., and at the grass-roots level. This campaign, coordinated through the Coalition for a Democratic Workplace, has been successful in getting some lawmakers who previously supported EFCA to reconsider their positions.

Support and opposition

With 222 original co-sponsors in the House of Representatives, EFCA clearly has the votes to pass. The real EFCA battle is in the Senate, and it now appears the bill may not be able to achieve the 60 votes needed to overcome a Republican filibuster—at least not in the near future.

In 2007, EFCA received 52 votes in the Senate, with all Democratic Senators and one Republican, Sen. Arlen Specter (R-Pa.), voting in support of a procedural motion that required 60 votes. Democrats have 58 seats and are close to the 60-vote threshold—as long as they can maintain unified support. The triumph of Democratic challenger Al Franken over Republican Sen. Norm Coleman in the disputed Minnesota race would put yet another EFCA supporter in the Senate.

But several Democrats who supported EFCA in 2007 now are undecided or inclined to vote against the bill. Sen. Claire McCaskill (D-Mo.) recently admitted that Senate Democrats are "not sure that we have the votes" to pass the bill.

EFCA was dealt a major setback in late March when Specter announced he will oppose the bill. Specter said he believes reform of the current union organizing system is needed, but he prefers more limited reforms. Specter also said he might reconsider his position if other reforms prove ineffective and "when the economy returns to normalcy."

It also is unclear when House Speaker Nancy Pelosi (D-Calif.) will bring EFCA up for a vote. Some House Democrats who voted for EFCA in 2007 have privately urged Pelosi to not bring up the bill for a vote until it becomes clear it has the votes to pass the Senate because they fear casting a vote in favor of EFCA could be politically damaging. So far, Pelosi appears to be siding with these members rather than EFCA supporters who would like to see House passage soon.

Sustaining the effort

The business community clearly has waged an effective lobbying campaign that has slowed EFCA's momentum. But this effort will need to be sustained as long as EFCA supporters remain determined to radically change federal labor law.

Moreover, it is critical the business community remains united in opposition to compromise proposals based on EFCA, which are sure to surface, to ensure the bill's defeat.

Duane L. Musser is NRCA's vice president of government relations.