End of the Road for the Employee Free Choice Act, Or Just the Opening Salvo?

On Tuesday the Senate voted 51-48 to end a Republican filibuster of the Employee Free Choice Act (EFCA), which would strengthen workers' right to choose a union. The House of Representatives had already passed the bill by a vote of 263-146 on March 1. According to Senate rules, however, supporters of the legislation need a super-majority of 60 votes to "invoke cloture" ( i.e., to end the filibuster). Thus, Congress will likely take no further action on the bill until after the 2008 elections.

It would be wrong to consider the Senate vote a defeat for supporters of the measure. Quite the opposite - 12 months ago, few observers would have predicted that by June 2007, EFCA would have won the support of a majority in both Houses of Congress. Supporters of the bill have always considered their effort part of a three year legislative campaign, the end goal being enactment of EFCA by summer 2009, assuming, of course, that the Democrats win control of the White House and retain control of the Congress in the November 2008 elections.

Even if that were the outcome of the 2008 elections, however, EFCA supporters will face an uphill task gaining 60 votes in the Senate. For three decades, this super-majority requirement has presented the biggest obstacle to the modernization of our antiquated and increasingly irrelevant labor law. Labor law reform is a "no compromise" issue for the business community and its Republican allies in the Congress. Tuesday's vote was not the first time that Senate Republicans have filibustered a labor law reform proposal - they twice filibustered a bill strengthening workers' rights in the 1970s and one outlawing the permanent replacement of strikers in the 1990s -- nor will it be the last.

The case for stronger legal protection for workers' rights is compelling. The US system of union recognition is the most cumbersome in the developed world, and it provides the weakest protections for workers' right to choose a union. Employer intimidation is endemic, and there are now about 60 million Americans who want a union but can't get one, according to the eminent Harvard economist, Richard Freeman. EFCA would remedy that situation by imposing greater penalties on employers who discriminate against union supporters, providing for mediation and arbitration when employers and unions fail to negotiate first contracts, and allowing workers to form a union when over 50 percent sign union membership cards.

EFCA opponents have seized upon this final provision allowing for "card check" recognition of unions to label the measure an unprecedented and anti-democratic power grab by Big Labor. But contrary to their vitriolic rhetoric, card check recognition is neither unprecedented nor anti-democratic. A system of card check recognition has operated successfully in the United Kingdom since the enactment of the Employment Relations Act in 2000. This law allows the UK equivalent of the National Labor Relations Board to certify a union when over 50 percent of workers sign union membership cards, or call an election if it believes this is in the interests of good industrial relations. In practice, however, the board rarely requires an election when a majority of workers have signed union membership cards.

Card check recognition for unions also operates at the federal level in Canada and in several Canadian provinces. As in the UK, card check laws have not resulted in any significant problems in Canada. Even in those provinces that require secret ballot elections prior to union certification, elections are held quickly and employer behavior is regulated tightly. For complex historical and cultural reasons, moreover, few UK and Canadian employers are as anti-union as their US counterparts. As a result of these card check laws, employer coercion during union organizing campaign is much less of a problem in the UK and Canada than it is in the US.

Nor is it only other countries that consider card check recognition good public policy. Many US lawmakers believe this, too, and card check is the norm for large numbers of American workers who are not covered by the National Labor Relations Act. Workers who have formed unions under card check laws include state and local public sector workers in Alaska, California, Illinois, New Jersey, New Mexico, New York, and Ohio, and charter school, Indian gaming, public sector higher education and trial court employees in several states. And voluntary card check agreements are increasingly common and viewed as "best practice" in those sectors of the private workforce in which unions and management have developed long-term, cooperative relationships. Corporations such as Cingular Wireless, Kaiser Permanente and Allina health care system recognize the benefits of card check recognition and cooperative labor-management relations.

So what are the prospects for the enactment of EFCA? Past experience suggests that the window of opportunity, if it does emerge after the 2008 elections, will be brief, so action will need to be swift - immediately after the first 100 days in office. EFCA supporters must enlist the assistance of as many non-labor allies as possible, and frame the debate in broad terms, stressing that unions and collective bargaining - which greatly expand access to employer healthcare and pension schemes -- are critical to restoring the American Dream and revitalizing the imperiled middle-class.

But even all that might not be enough. Just as they did on Tuesday, the business community and its allies in the Senate may be able to employ the filibuster one more time to undermine this effort to protect workers' right to choose a union.

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