Raising the Dead: Can EFCA be revived?



While the Employee Free Choice Act (“EFCA”) received front page treatment immediately after the November ’08 elections and through the spring, 2009, it has slowly lost its life force, so as to become moribund.  While quickly introduced into the House, it rapidly lost support among key Democratic Senators, including Sen. Arlen Specter (D – Pa.) and Sen. Dianne Feinstein (D – Ca.).  By June, the Senate Democrats and labor were at least six votes short of that needed for cloture and to end debate.  Since then, the bill has been comatose, on a deathbed.  While the bill is labor’s priority, it has received much less attention from President Obama, who has focused his energy on health care, climate change, and the great recession.

Many commentators have speculated that labor has a fighting chance to revive and pass EFCA if it pushes hard in 2010 before the mid-term elections, with compromises in mind.  Such compromises would include super majority card checks, quickie elections, or some combination of both; elimination or modification of mandatory interest arbitration for first time labor agreements, and implementing financial penalties and fines for employers who fail to bargain in good faith, or engage in surface bargaining; guaranteeing unions access to employees at the workplace, and limiting or restricting the employer’s right to engage in captive audience speeches; and imposing civil monetary penalties for unfair labor practices.

The chances of passage could be enhanced if a compromise version was tacked on as an amendment to a job creation or other large bill.  But the compromise would have to be just that, and not hand either management or labor a lopsided win.  Such an effort will have to begin now, as the midterm elections are only 10 months away, and all indications are that Democrats in both Houses will lose a significant number of seats.  One can imagine the frustration of SEIU President Andrew Stern as he reviews union expenditures after his weekly visits to the White House.

This next two quarters, Arnstein & Lehr will be conducting several seminars to educate employers on how to remain union free, no matter what happens with card check at the end of the day.   We will keep you informed of developments, and look forward to seeing you there.  Happy New Year to all.

Mark A. Spognardi is a partner in Arnstein & Lehr’s Labor and Employment Law Department.  His practice is devoted exclusively to representing management in  traditional and non-traditional labor and employment law litigation and counseling.

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