Card Check is Still Alive

written on March 22, 2011 by Kenyon Mau

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A reader to a recent COSE Update asked what has been the latest on EFCA (Employee Free Choice Act). As recently as December 2010, I wrote an article on EFCA indicating the bill was not totally dead and that it could still be resurrected.  Well guess what?  With state governments introducing bills to limit collective bargaining rights of state workers in Wisconsin and here in Ohio, EFCA is groggy.

In just the first three months of 2011, we are seeing the NLRB (National Labor Relations Board) and the states of Arizona, South Carolina, South Dakota, and Utah exchanging words over states’ rights over controlling the organizing process.  Voters in those four states approved continuation of the secret ballot provision of unionization. The NLRB has responded those states are in conflict with federal labor law and therefore are preempted by the U.S. Constitution" and the NLRA (National labor Relations Act) because they "prohibit the [card-check] method and therefore interfere with the exercise of a well-established federally protected right."   As of now, both sides seem to be seeking common ground to negotiate a settlement. The NLRB seems to be showing signs of taking care of the legislation EFCA was intended to do. 

A bill gaining some momentum in Congress is the Secret Ballot Provision Act (SBPA) sponsored by Tennessee Republican Representative Phil Roe. In this bill, Roe is supporting legislation that would protect a union member’s right to a secret ballot.  Roe contends this would allow the “rank and file” to continue to have a voice in their future with access to truthful information while also ensuring they have a say when management is willing to voluntarily allowing unionization to occur.   He sees the problems of not having a secret ballot provision; especially given the apparent direction of the NLRB to overturn the secret ballot.  I am sure more will be forthcoming on this as well.

Many have declared EFCA dead after its quiet removal from the political scene once health care reform took off. The recent passage of tighter collective bargaining rights for state workers in Wisconsin has certainly become a game changing event. More states, including Ohio, are looking into similar moves. With organized labor membership at significant lows, the drive to increase their size becomes even more important.  EFCA may not ever come back in its most recent form. However, unions are continuing to seek ways of increasing their voice and regain their lost power. 

So the update; nothing has really changed. The lines are still drawn between those seeking to expand labor’s “muscle” with those who seek to limit that power.  At this point, stay tuned.  It should be an interesting process to watch regardless of how it turns out.